2025-201-Minutes for Meeting May 07,2025 Recorded 6/24/2025�v1 E S C'p
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�{ BOARD OF
I COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
9:00 AM
Recorded in Deschutes County �sal�®2�-Zn1
Steve Dennison; County Clerk
Commissioners' Journal 06/24/2025 9:56:31 AM
2025-201
BOCC MEETING MINUTES
WEDNESDAY May 7, 2025
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Anthony DeBone (via Zoom), Patti Adair and Phil Chang. Also present were
County Administrator Nick Lelack; Senior Assistant Legal Counsel Kim Riley; and
BOCC Executive Assistant Brenda Fritsvold.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website www.deschutes.org/meetings.
CALL TO ORDER: Vice Chair Adair called the meeting to order at 9:00 am and noted
Chair DeBone's attendance via Zoom.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None
Commissioner Adair acknowledged Public Service Recognition Week, expressed
appreciation for the work done by County staff, and encouraged property owners to avail
themselves of the limited window to dispose of yard waste free of charge this month.
Commissioner DeBone spoke to the vital services provided by County staff to the public
and expressed appreciation for their valuable work.
Commissioner Chang said public service is also done by federal and state employees as
well as by staff of Tribal organizations, some of whom are present today.
BOCC MEETING MAY 7, 2025 PAGE 1 OF 15
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
Approval of amendment to the contract with Amergis Healthcare Staffing for
DCSO Adultjail medical staffing
2. Authorize the donation of 0.21 acre of real property located in Newberry
Neighborhood 3 in La Pine to the City of Pine, and further authorize granting a
temporary construction easement to the City of La Pine
3. Acceptance of Oregon Health Authority substance misuse prevention grant and
approval of Resolution No. 2025-012 appropriating the grant funds
4. Consideration of Board Signature on letter thanking Denise Gardiner for service
on the Newberry Estates Special Road District
5. Approval of the minutes of the March 31 and April 16, 2025 BOCC meetings
CHANG: Move Board approval of the Consent Agenda as presented
DEBONE: Second
VOTE: DEBONE: Yes
CHANG: Yes
ADAIR: Acting Chair votes yes. Motion Carried 3 - 0
ACTION ITEMS:
6. Proclamation: Mental Health Awareness Month
Holly Harris, Behavioral Health Director, and Casey Munck, Program Director for
NAMI Central Oregon, presented a proclamation declaring May to be Mental Health
Awareness Month.
Kenny Haddon, Board Chair for NAMI Central Oregon, said because mental health
illness is common and treatable, it's important to be aware of it and open to talking
about it. Although severe mental illness occurs in about one in four families, keeping
it as secret as possible makes it hard to reach out for the help which is available.
The Commissioners expressed appreciation for NAMI's programs, services and
advocacy for mental health and also for the work done by the County's Behavioral
Health Division to assist those who are struggling with or suffering from mental
illness. The Commissioners read the proclamation into the record.
BOCC MEETING MAY 7, 2025 PAGE 2 OF 15
Fj
8.
CHANG: Move approval of a proclarnation recognizing May, 2025 as Mental
Health Awareness Month
DEBONE: Second
VOTE: DEBONE: Yes
CHANG: Yes
ADAIR: Acting Chair votes yes. Motion Carried 3 - 0
Work Session: Deschutes County FY 2026 Proposed Fee Schedule Changes
Laura Skundrick, Management Analyst, presented the proposed changes to the
County's Fee Schedule, explaining these are based on inflationary factors, state or
federal mandates, or to capture the actual cost of service provided. Saying the
proposals will come back before the Board at a public hearing in June, she noted a
correction on page 68 in relation to the proposed increase of CDD's refund request
processing fee from $40 to $46—the accessory notation should state that no refund
will be issued if the refund amount is less than $46. In addition, the schedule should
state that the applicable public hearings for the Bend Park & Rec fees will be held on
May 20, 2025.
Commissioner Adair urged awareness of the cost that permitting adds to the
construction of new homes.
Commissioner DeBone encouraged the community to review the proposed
changes.
In response to Commissioner Chang, Skundrick confirmed that the proposal
includes raising food service and other inspection fees to ensure continued full
operations of the Environmental Health division.
Steve Dennison, County Clerk, spoke to the proposed change to raise the GIS
recording fee from $6 to $10, saying this fee has not been increased since 2008.
While he recognized that this nearly 70% increase will be impactful, he said the
Board could consider tapping another revenue source to subsidize it. Dennison
added that as the legislature has yet to finalize the State's budget, it is not yet known
whether the state -determined $93 fee to record a document will be raised.
Board Order 2025-016; Decision whether to hear an appeal of a Hearings
Officer's remand decision associated with the zoning designation for the
ODOT Lava Butte Trail
Anthony Raguine, Principal Planner, presented the background of this matter, which
involves a ruling sought by ODOT to determine whether a new public path along
BOCC MEETING MAY 7, 2025 PAGE 3 OF 15
Highway 97 between Baker -Knott Road and the Lava Butte Visitor Center would be
allowed. The Hearings Officer's conclusion that the subject right-of-way is zoned
RR10, which outright allows a public path as proposed, was appealed and
subsequently remanded back to the County for "... adequate findings addressing
[whether] the application is a collateral attack on the final and unappealed Weigh
Station Decision."
Explaining that the referenced Weigh Station Decision was a 1999 Board decision
which denied a conditional use request for an ODOT weigh station and also found
that the above -referenced segment of Highway 97 was zoned Forest Use, Raguine
said the Hearings Officer issued a decision in April of this year concluding that the
Declaratory Ruling decision does not amount to a collateral attack on the Weigh
Station Decision. The Windlinx Ranch Trust appealed this decision and asks that the
Board hear the appeal.
Summarizing that the basic question is whether the decision of the Hearing Officer
constitutes a collateral attack on a previous decision of the Board, Raguine said staff
does not believe there is sufficient time for the Board to hear this appeal as a
decision is due by June 12th. He added that both parties have been well -
represented in this matter, and staff recommends that the Board decline to hear
the appeal.
In response to Commissioner Adair, Raguine said if the Board does not hear the
appeal, the appellant will be reimbursed for the $5,150 appeal fee less a small
amount of staff time.
Responding to Commissioner DeBone, Raguine confirmed that the RR10 zone would
allow the proposed public path outright, but it would not be allowed in the Forest
Zone.
Commissioner Chang said the process undertaken thus far on this project and the
appeal has allowed for comment and testimony by proponents and opponents.
Stephanie Marshall, Senior Assistant Legal Counsel, spoke to the extraordinarily
challenging timeframe for hearing this appeal in view of the June 12th deadline.
Adding that the appellant has raised concerns that the Hearings Officer has ties to
officials in State government, Commissioner Chang referred to his own service on
the Oregon Transportation Commission.
Will Groves, Planning Manager, emphasized the difficulty of achieving a decision by
the deadline and was concerned that a procedural error could occur due to the
short timeframe. He expected this matter to be appealed to LUBA in the future.
BOCC MEETING MAY 7, 2025 PAGE 4 OF 15
Saying the decision of the Hearings Officer was well -reasoned, Commissioner
DeBone supported not hearing the appeal.
Responding to Commissioner Adair, Raguine said if the Board does not take any
action at all, the decision of the Hearings Officer would become the final decision of
the County.
DEBONE: Move approval of Board Order 2025-016 denying review of a Hearings
Officer's remand decision associated with the zoning designation for
the ODOT Lava Butte Trail
ADAIR: Second
VOTE: CHANG: (abstained)
DEBONE: Yes
ADAIR: Acting Chair votes yes. Motion Carried 2 - 1 - 0
At staffs request, item #10 was taken up before item #9.
10. Consideration of First and Second Readings and emergency adoption of
Ordinance No. 2025-004 to allow RVs as Rental Dwellings
Tanya Saltzman, Senior Manner, reviewed the history of the proposal and the
Board's discussions to allow recreational vehicles (RVs) as rental dwellings. The
ordinance presented for the Board's consideration would establish regulations as
well as a minimum lot size of two acres except for some areas in southern
Deschutes County, where the minimum lot size would be five acres. All told, about
700 properties would be eligible to have an RV as a residential dwelling.
Saltzman recommended that the Board adopt the ordinance by emergency to take
effect immediately.
In response to Commissioner Adair, Saltzman said the permit to have an RV as a
residential dwelling would cost the same as for an ADU, or about $800 to $900.
Commissioner DeBone was excited to offer this opportunity. Commissioner Chang
said this will provide for workforce and lower income housing opportunities.
CHANG:
DEBONE:
VOTE:
BOCC MEETING
Move approval of first and second reading of Ordinance No. 2025-004
by title only
Second
DEBONE: Yes
MAY 7, 2025
PAGE 5OF15
CHANG: Yes
ADAIR: Acting Chair votes yes. Motion Carried 3 - 0
Acting Chair Adair read the title of the ordinance into the record twice.
DEBONE: Move to adopt Ordinance No. 2025-004 amending Deschutes County
Code Title 16, Addresses and Road Names, Title 18, Zoning Ordinance,
and Title 19, Bend Urban Area Zoning Ordinance, to allow
Recreational Vehicles as rental dwellings and declaring an emergency
to take effect immediately
CHANG: Second
VOTE: DEBONE: Yes
CHANG: Yes
ADAIR: Acting Chair votes yes. Motion Carried 3 - 0
Saying this will allow someone to legally live in an RV on someone else's property,
Commissioner DeBone said this new program expands housing options for people
who need them.
Responding to Commissioner Adair, Saltzman said the County will issue a press
release today or tomorrow announcing this new opportunity.
Commissioner Chang reminded that this will afford a chance for unauthorized RV
rental dwellings to come into compliance.
9. Consideration of first reading of an ordinance amending Deschutes County
Code regarding Temporary Hardship Dwellings
Nicole Mardell, Senior Planner, said the primary purpose of the amendments are to
conform local requirements to state law and provide consistency for the review of
hardship dwellings across multiple county zones. Notable changes include the
reorganization of content for readability; the amendment of outdated references;
clarification that a hardship dwelling can be used for the "aged" as well as the
"infirmed"; clarification of the term "existing building'; clarification that a hardship
dwelling can be the only second dwelling on the property; and the extension of the
renewal period from one year to two years.
Commissioner DeBone acknowledged that with these changes, the County is
somewhat relaxing the regulations for temporary hardship dwellings, thus
moderately expanding this opportunity.
DEBONE: Move approval of first reading of Ordinance No. 2025-005 by title only
BOCC MEETING MAY 7, 2025 PAGE 6 OF 15
CHANG: Second
VOTE: DEBONE: Yes
CHANG: Yes
ADAIR: Acting Chair votes yes. Motion Carried 3 - 0
Acting Chair Adair read the title of the ordinance into the record.
11. Public Hearing: Remand of a modification to the Final Master Plan of the
Thornburgh Destination Resort
Jacob Ripper, Principal Planner, outlined the procedures for the hearing and
reported communication from Jennifer Bragar, representing Nunzie Gould and
others regarding an email sent to the Board on April 11, 2025 concerning the scope
of the record which the Board had considered and acted on at its April 16, 2025
meeting. Bragar asked that the County determine that improper ex parte contact
was entered into by Commissioners Adair and DeBone.
Stephanie Marshall, Senior Assistant Legal Counsel, spoke to the request that
Commissioners Adair and DeBone recuse themselves from this matter, noting it is
up to each Commissioner whether to recuse themselves or not.
Commissioner DeBone said the referenced April 11 th email was sent to all three of
the Commissioners. Commissioner Chang said he did not read that email because
he was concerned about procedural impropriety.
Carol McBeth, attorney for Central Oregon Land Watch (COLW), suggested that
Commissioners Adair and DeBone have pre -judged this issue. Adding that the Board
voted to not allow the Tribes to present new evidence into the record, she objected
to not allowing the public to participate in a fair and impartial proceeding.
Noting that the call for Commissioners Adair and DeBone to recuse themselves has
been made, Marshall asked them to state whether they will recuse themselves or
not.
Commissioner DeBone said he will not recuse himself as he did not view himself to
be compromised and unable to hear this matter.
Commissioner Adair also declined to recuse herself.
Ken Katzaroff, representing the applicant, noted that the referenced April 11 th email
was sent in response to a letter issued by the Tribes. He added that the meeting at
BOCC MEETING MAY 7, 2025 PAGE 7 OF 15
which the Board decided the scope of the hearing on the remand issues was noticed
according to the Beard's usual process.
Bragar objected that only certain persons will be allowed to speak today. Marshall
explained this limitation is imposed in accordance with State law and County Code
for matters remanded from LUBA to the County.
Continuing, Ripper reviewed the background of the application and the various legal
challenges and decisions associated with it.
Marshall explained that any person who participated in a previous hearing on this
matter has standing and can participate today although no new evidence is allowed
except to the issue of the development's economic impact.
The public hearing was opened at 10:44 am.
Ken Katzaroff, representing the applicant, provided an overview of the planned
development and explained the applicant's proposed modification of the Fish and
Wildlife Management Plan (FWMP), which reduces the amount of water which will be
used from over 2,120 acre-feet (AF) to 1,460 AF. Saying the applicant's updated
FWMP mitigates groundwater effects better than the 2008 plan, Katzaroff reminded
that according to the Court of Appeals, only the impacts from the proposed
development can be considered. This means that neither basin -wide water policy
management issues nor issues related to climate (i.e., drought conditions) can be
taken into consideration.
In response to Commissioner Chang, Katzaroff said the impact of the development
on groundwater levels has been shown to be a net benefit with respect to both fish
habitat quantity and quality.
Katzaroff then referenced the various water rights secured by Thornburgh and how
these will be utilized or left unused to ensure compliance with groundwater
mitigation requirements, specifically the County's "no net loss" standard. He
explained how compliance with the FWMP will be reported, saying this will include
documentation of the amount of water pumped from each water right.
With regard to the updated economic analysis, Katzaroff said even if a fourth golf
course is not developed, Thornburgh will nevertheless provide a substantial
financial contribution which will positively benefit the local economy.
Kameron DeLashmutt, property owner, narrated a depiction showing how the
development's golf course site plan has changed to have one 18-hole golf course
spread over acreage previously planned for two golf courses. He reviewed key
BOCC MEETING MAY 7, 2025 PAGE 8 OF 15
findings of the updated economic analysis which project a peak employment of
2,074 employees with a total payroll of $142.5 million, the addition of 950 single
family homes, and substantial property tax revenues.
Regarding the rights granted under the Treaty with the Tribes of Central Oregon,
Katzaroff said the development would not violate the Treaty because the updated
FWMP creates a net benefit of quality and quantity of fish habitat.
Responding to Commissioner Chang, DeLashmutt said the houses are expected to
sell for about $600 per square foot, or $1.5 - $2.0 million.
Commissioner Chang commented that thousands of homes in destination resorts
are used seasonally and empty most of the year.
Discussion ensued of the amount of property taxes expected to be generated by the
houses that would be built at Thornburgh and how that revenue would be
expended.
In response to Commissioner Adair, DeLashmutt said the project is not permitted
for workforce housing.
Commissioner Chang asked how the applicant will meet the burden of proof with
respect to the necessary monitoring to show that the no net loss standard is being
met.
DeLashmutt said the company already owns 1,700 acre feet of groundwater rights
in addition to certificated water rights, and has ceased pumping under all of those
rights. He said the water that is no longer being pumped is being left in the aquifer
and explained the effects of this.
Commissioner Chang reminded that because the no net loss standard is a local rule,
the State defers to the County to determine if that is met or not.
Katzaroff said the issue of the modeling done to determine the impacts on
groundwater levels was directly litigated and resolved by the Court of Appeals, and
cannot be considered as part of these remand proceedings.
Expressing his concern that the no net loss standard will not be met and saying that
the Treaty rights must be considered at a higher level than just the no net loss
standard, Commissioner Chang objected to denying the Tribe adequate opportunity
to analyze the development proposal and its potential effects on fish habitat.
BOCC MEETING MAY 7, 2025 PAGE 9 OF 15
Ellen Grover, representing the Confederated Tribes of Warm Springs, stated that the
Oregon Department of Fish and Wildlife has ceded its agency testimony time to the
Tribes.
josh Newton, also representing the Tribes, submitted a formal objection that the
Board erred in not reopening the record on the issue of the Treaty rights as
required by the Court of Appeals and said it was inappropriate of the applicant to
refer to certain evidence regarding the Treaty rights as that information is not in the
record.
Grover requested that the Board leave the record open for 14 days following today's
hearing.
Saying that the applicant sought to amend its FWMP in 2022, which reworks the
mitigation for the use of groundwater in a novel way, Grover objected that the
County has provided no deference to the 1855 Treaty rights of the Tribes with
regard to the no net loss standard. She reviewed the rights reserved by the Tribes in
the Treaty and said if the modified FWMP affects the number of harvestable fish
protected by the Treaty, it cannot be accepted.
Grover added that the Court had directed that the Tribes be allowed to present
evidence as to whether the modified FWMP is in alignment with its Treaty rights.
Stressing that the actual, current condition of the resource must be considered by
the Board, she said this is not possible because it is not included in the model put
forth by the applicant. She concluded that therefore, the applicant cannot state that
the modified FWMP will not result in no net loss of fish species which are protected
by the Treaty.
• Jolene Estimo, a party of record, conceded her time to Naomi Sherpa, a non-
party of record. Sherpa, representing the Confederated Tribes of Warm
Springs, requested that the Tribes be allowed 30 minutes to provide
testimony and that the public hearing be continued to June 28t". Sherpa
further spoke to the Tribes' involvement in managing water resources in the
region and their desire to protect and balance the use of resources into the
future.
• Jennifer Eales submitted testimony on behalf of Susie Hart, saying it is
unethical to refuse to consider new evidence for all of the matters remanded
from LUBA and sharing her view that the model used for the modified FWMP
is common sense.
• Paul Lipscomb said the notice issued for the public hearing was incorrect
because it did not allow for testimony on the Treaty issues, yet LUBA had
said that the Tribes would have an opportunity to present on these issues.
• Mary Powell referred to written testimony she submitted yesterday.
BOCC MEETING MAY 7, 2025 PAGE 10 OF 15
• Mary Powell, representing the League of Women Voters of Deschutes County
(LWVDC), read a statement saying that this development would lower
groundwater levels and reduce groundwater discharge to surface water
sources such as Whychus Creek. She listed fish species which rely on the
protection of groundwater resources and urged that the County respect the
Treaty with the Tribes.
• Susan Strauss was very concerned about declining groundwater levels and
believed that more information is needed on this, including information from
the Tribes.
• Thomas Bishop echoed the comments from Judge Lipscomb.
• Mary Fleischmann was concerned about the limited amount of water
available to protect fish and said the Board should reject the modified FWMP
and protect the Treaty rights of the Tribes.
• Jennifer Bragar, representing Nunzie Gould et al., objected that the wording
of the notices published for this hearing resulted in the public being denied a
fair hearing. She requested a two -week open record and response period.
• Joe Craig expressed concern about additional pressure on the existing water
supply, noting that many private wells have gone dry in this area with the
result that people have had to drill deeper. Saying it is clear that the
development will fall short of the no net loss of wildlife habitat requirement,
he urged allowing the Tribes to speak to these issues.
• Carol MacBeth, representing Central Oregon Land Watch, objected to the
sufficiency of the notice for the hearing and said the County also failed to
make all documents of record available as required. She said the Board
should have reopened the record on all three topics remanded by LUBA
instead of just one.
• Susan Burdick said after her private well in Redmond went dry three years
ago, she had to drill a new one to a depth of 477 feet. Saying she cannot
afford to drill another, she added that many of her neighbor's wells have also
gone dry, and those who cannot drill wells in a timely manner must have
water delivered until a new well is drilled.
During the applicant's opportunity for rebuttal, Katzaroff suggested that County
staff provide a memo to the record explaining the adequacy of the notice issued for
the public hearing. He next reminded that the matter of the baseline conditions was
litigated and resolved by the Court, and that the issues of drought, climate change,
etc. are not relevant to this proceeding.
DeLashmutt said the groundwater modeling was done based on a low -flow year as
requested by interested parties. He said despite significant efforts to resolve
concerns of the Tribes, representatives of the developer were not successful in
engaging them.
BOCC MEETING MAY 7, 2025 PAGE 11 OF 15
Katzaroff added that some of the experts used by the developer are regularly hired
by the Tribes. Noting that the applicant cannot extend the record in a remand
proceeding such as this one, he said the oral arguments made before the Court are
in fact part of the record although these are not fully replicated in the Court's
decision.
In response to Commissioner Chang, Katzaroff explained that LUBA did not order
the County to reopen the record with regard to the Treaty rights; it only remanded
the three issues for additional findings and left it up to the Board to determine
which issues required reopening the record to secure new information for the
required findings. He disagreed that the information in the record is insufficient to
make findings as to whether the 2022 FWMP violates the Treaty with the
Tribes of Middle Oregon.
Responding to Commissioner Chang, DeLashmutt said ODFW has not yet signed off
on the modified FWMP.
The public hearing was closed at 12:40 pm.
The Board was in consensus to leave the written record open for 14 days, after
which the applicant will have another seven days to provide rebuttal statements and
after that another seven days to submit a final argument. Ripper reminded that the
record is open for new evidence on the subject of economic analysis only.
In response to Commissioner DeBone, Senior Assistant Legal Counsel Marshall
disagreed with the challenge that the notice for the hearing was inadequate and
said she would submit a memo to the record with regard to that challenge.
A lunch recess was announced at 12:45 pm. The meeting reconvened at 1:45 pm.
12. Public Hearing on the Community Development Department Draft
FY 2025-26 Work Plan
Peter Gutowsky reminded that the Work Plan was initially presented to the Board
on April 21 st and has also been reviewed by the Planning Commission. He explained
that the purpose of the Work Plan is to guide CDD in prioritizing staff resources in
the upcoming year.
The public hearing was opened at 1:50 pm.
Adam Smith advocated for elevating the "Lot Line Adjustments and Re -Platting"
zoning text amendments project from low priority to a higher priority, saying that
amending this section of County Code would not take a great deal of staff resources,
BOCC MEETING MAY 7, 2025 PAGE 12 OF 15
yet would benefit many property owners. He explained that currently; the County's
Code is much more restrictive tinan required by the State as the County restricts lot
line adjustments to 1 O% of any property which is zoned EFU and sized less than 80
acres, and gave examples of how this has negatively impacted various property
owners.
Planning Manager Will Groves said while this change would be relatively simple in
terms of amending the text, it could have unwanted results as loosening this
restriction would have the effect of allowing some development on EFU land which
is not currently permitted. Groves added that lot line adjustments are frequently
desired to secure access to existing roads.
Smith said in some cases, development is allowed but would not make sense
economically without a lot line adjustment due to adverse tax circumstances.
Discussion ensued of the practical effects of the County's 10% lot line adjustment
rule, how those differ from the State's regulations, and the Board's ability to direct
that staff prioritize this work in the near future.
There being no one else who wished to speak, the public hearing was closed at 2:16 pm.
Gutowsky said he will bring the Work Plan back to the Board on May 281h for
possible approval, with any desired modifications.
13. Consideration of options to close or limit use of County -owned property
Erik Kropp, Deputy County Administrator, presented options for the Board's
consideration to close or limit use of County -owned land, including property on
Rickard Road. Reminding that the County cannot disperse anyone who is camping
on County -owned property unless an alternate location is provided, he said the
County can post signage limiting an area to day use only and enforce that once it's
posted.
In response to Commissioner Adair, Property Manager Kristie Bollinger said just one
person appears to be camping in a trailer at Rickard Road at this time.
Saying that the County has never authorized camping at this location, Commissioner
DeBone supported restricting rural County -owned properties to day use only.
Commissioner Chang said while he supported restricting the Rickard Road property
to day use only, he was not sure if it was necessary to extend this restriction to all
County -owned properties.
BOCC MEETING MAY 7, 2025 PAGE 13 OF 15
Commissioner Adair agreed with imposing day use only restrictions on properties
which are vulnerable to being used by people camping overnight.
The Board concurred to direct staff to install signage on the County -owned land on
Rickard Road today for day use only, and further directed staff to return with a list of
all County -owned properties which do not currently have encampments for
consideration of restricting them for day use only or closing them to public use.
Discussion ensued regarding efforts to establish additional affordable housing
options (RVs as rental dwellings, temporary medical hardship dwellings) as well as
various shelter facilities; the number of growing encampments outside of Sisters
and La Pine; and the possible relocation of the one encampment on County -owned
property on Rickard Road to the TSSA at Juniper Ridge.
14. Consideration of Board Order No. 2025-019 establishing Temporary No Parking
Zones within the public Right of Way of China Hat Road, Horse Butte Road, and
Knott Road
Chris Doty, Road Director, presented a draft Board Order which would prohibit
parking on China Hat Road, Horse Butte Road, and Knott Road through the end of
this year.
Commissioner Adair asked if someone will be cited if they are parked there now.
Doty responded that all of the vehicles parked in the referenced rights -of -way have
already been tagged, and signage will soon be installed.
DEBONE: Move approval of Board Order No. 2025-2019, establishing temporary No
Parking Zones within the public right-of-way of China Hat Road, Horse Butte
Road, and Knott Road in Deschutes County, Oregon and directing that signs
be posted
CHANG: Second
VOTE: DEBONE: Yes
CHANG: Yes
ADAIR: Acting Chair votes yes. Motion Carried 3 - 0
OTHER ITEMS:
Commissioner Chang referred to the Board's approval on Monday of a letter
regarding the routing of PacificCorp's new powerline. While he agreed that Route D
is a reasonable option and was not opposed to it, he also viewed a different option
utilizing part of Routes B or C and then A as another good alternative.
Commissioner DeBone agreed that the Board could send two letters on this topic.
BOCC MEETING MAY 7, 2025 PAGE 14 OF 15
• Referring to the letter approved by Commissioners DeBone and Adair to
Congressman Bentz regarding the acceptance by the County of 40 acres of federal
land south of La Pine, Commissioner Chang said he envisioned a potential land
exchange opportunity with regard to this parcel, but did not support a one-way
conveyance as proposed.
• Commissioner DeBone shared that he was currently in Salem attending the Oregon
Radio Conference.
• Commissioner Adair reported on yesterday's Visit Central Oregon meeting where it
was recognized that some industries need more help in the off-season.
• Commissioner Chang reported on yesterdays managed camp workgroup meeting
with the City of Redmond, saying that construction of 21 st Street is on track.
A break was announced at 3:05 pm. The meeting resumed at 3:17 pm.
EXECUTIVE SESSION:
At 3:17 pm, the Board entered executive session under ORS 192.660 (2) (e) Real Property
Negotiations.
At 3:36 pm, the executive session concluded. The Board directed staff to proceed as discussed
during the executive session.
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 3:36 pm.
DATED this Day of
ATTEST:
i 9.91 ,
2025 for the Deschutes County Board of Commissioners.
ANTHONY DEBONE, CHAIR
PATTI ADAIR, VICE CHAIR
PHIL CHANG, COMMISSIONER
BOCC MEETING MAY 7, 2025 PAGE 15 OF 15
• Referring to the letter approved by Commissioners DeBone and Adair to
Congressman Bentz regarding the acceptance by the County of 40 acres of federal
land south of La Pine, Commissioner Chang said he envisioned a potential land
exchange opportunity with regard to this parcel, but did not support a one-way
conveyance as proposed.
• Commissioner DeBone shared that he was currently in Salem attending the Oregon
Radio Conference.
• Commissioner Adair reported on yesterday's Visit Central Oregon meeting where it
was recognized that some industries need more help in the off-season.
• Commissioner Chang reported on yesterday's managed camp workgroup meeting
with the City of Redmond, saying that construction of 21 st Street is on track.
A break was announced at 3:05 pm. The meeting resumed at 3:17 pm.
EXECUTIVE SESSION:
At 3:17 pm, the Board entered executive session under ORS 192.660 (2) (e) Real Property
Negotiations.
At 3:36 pm, the executive session concluded. The Board directed staff to proceed as discussed
during the executive session.
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 3:36 pm.
DATED this 1 0 Day of Y�L 2025 for the Deschutes County Board of Commissioners.
ATTEST:
RECORDING
71 �J//5°.
ANTHONY DEBONE, CHAIR
PATTI ADAIR, VICE CHAIR
PHIL CHANG, COMMISSIONER
BOCC MEETING MAY 7, 2025 PAGE 15 OF 15
�viES CO
A BOARD OF
COMMISSIONERS
MEETING DATE: May 7, 2025
SUBJECT: Deschutes County FY 2026 Proposed Fee Schedule Changes
RECOMMENDED MOTION:
Review and discuss Deschutes County and County Service Districts FY 2026 Proposed Fee
Schedule changes in preparation for a public hearing in June.
BACKGROUND AND POLICY IMPLICATIONS:
Per chapter 4.12 of the Deschutes County Code, "Fees and charges for services shall be
reviewed for compatibility with the actual cost of providing service each year, and shall be
adjusted and set as of each July 15t"
This discussion focuses on the proposed fee changes for FY 2026 in preparation for the
upcoming proposed budget public hearing in June. Some changes are based on
inflationary factors. Others are driven by external factors such as local, state, and federal
mandates. Still, others reflect changes made to capture the actual cost of service provided.
The more significant changes are accompanied by a memo from the related department
explaining the type of change reflected.
BUDGET IMPACTS:
Fee schedule proposed changes are reflected in the FY 2026 proposed budget.
ATTENDANCE:
Laura Skundrick, Finance Management Analyst
Cam Sparks, Budget and Financial Planning Manager
Shad Campbell, IT Applications Manager
Steve Dennison, County Clerk
Peter Gutowsky, Community Development Director
Sherri Pinner, Community Development Senior Management Analyst
Geoff Hinds, Fair & Expo Director
Arielle Samuel, Health Services Operations Manager
Kristie Bollinger, Property Management Director
Captain William Bailey, Sheriffs Office
Jessica Vanderpool, Sheriffs Office Senior Management Analyst
Tim Brownell, Solid Waste Director
Sue Monette, Solid Waste Management Analyst
Robert Tintle, Chief Financial Officer
Mindy Holliday, Sunriver Service District
FY 2026 Fee Schedule Proposed Changes
Table of Contents
Deschutes County
Assessor.......................................................................................................................................... 1
CountyClerk...................................................................................................................................
1
CommunityDevelopment............................................................................................................
3
Building Safety Division...........................................................................................
4
Onsite Wastewater Division..................................................................................
10
PlanningDivision.....................................................................................................
11
Fairgrounds Services
DeschutesCounty Fair............................................................................................
14
Fair& Expo...............................................................................................................
14
RV Park....................................................................................................................
16
Health Services
BehavioralHealth....................................................................................................
16
PublicHealth...........................................................................................................
17
Environmental Health Division.............................................................................
19
JusticeCourt..................................................................................................................................
21
PropertyManagement................................................................................................................
21
Sheriff's Office...............................................................................................................................
22
SolidWaste....................................................................................................................................
24
Treasurer / Tax
DogLicensing..........................................................................................................
24
RoomTax.................................................................................................................
25
PropertyTax...........................................................................................................
25
Treasurer.................................................................................................................
25
Black Butte Ranch County Service District................................................................................ 26
Sunriver Service District.............................................................................................................. 26
Department Memo Explaining Fee Change
Clerk's Office (GIS Fee)......................................................................................... 28
CommunityDevelopment..................................................................................... 29
HealthServices....................................................................................................... 34
PropertyManagement.......................................................................................... 37
Sheriff's Office........................................................................................................ 38
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To: Board of County Commissioners
From: Tania Mahood, Director, Information Technology
Date: April 23, 2025
Subject: GIS Requested Fee Adjustments FY26
BACKGROUND
Since 1991, Deschutes County implemented a Geographic Information System (GIS) program, which
incorporates geospatial data, software, hardware, and personnel. Geospatial pertains to anything
that can be measured or located within a spatial context. The GIS program's primary responsibility is
analyzing, managing, and portraying spatial data to illustrate geospatial relationships and trends
which includes Deschutes DIAL Property Information.
The essential infrastructure, resources, support, and training for the GIS program is managed within
the IT department. The GIS fund supports two full-time equivalent positions (2.0 FTE), with a portion
allocated to operational materials and services.
GIS FUND STATUS AND TRAJECTORY
The GIS fund, primarily sustained by recording fees, is pivotal to the county's spatial data initiatives.
Historically, while the fund has performed well during periods of high -market activity, it has
experienced a gradual decline due to a decrease in recording transactions. Financial forecasts
indicate the fund will operate at a deficit by fiscal year 2027.
Originally established in 1999/2000, the GIS Recording Fee was set at $5 per document. In 2007, a
fiscal analysis performed by an external group suggested a potential need to either reduce
expenditures or increase funding within three years. The GIS Recording Fee was increased by $1 in
2008.
IT PROPOSED FEE CHANGES FOR FY26
To uphold and enhance GIS service continuity and quality, staff is recommending that the GIS
Recording Fee be increased by a proposed increase of $4. This proposed increase would increase
the total fee amount for CLK 8 GIS Recording Fee from $6 to $10. The average GIS fee charged by
Oregon counties is $9.98.
This proposed increase is projected to stabilize the fund through fiscal year 2028.
1300 NW Wall Street Bend, Oregon 97703
(541) 388-6565 tania.mahood@deschutes.org www.deschutes.org
Page 28
MEMORANDUM
TO: Board of County Commissioners
FROM: Peter Gutowsky, Director
Sherri Pinner, Senior Management Analyst
DATE: May 7, 2025
SUBJECT: CDD Requested Fee Adjustments / Fiscal Year 2025-2026
I. BACKGROUND
The Community Development Department (CDD) is a fee -supported department that also receives revenue
from interest earned and interfund contracts with Solid Waste, Natural Resources, and the Road
Department. CDD's Fiscal Year (FY) 2025-26 requested budget is based on the following elements:
1. Assumes no growth in permitting volumes. Current volumes continue to align with the 2015-16
oU
111 Ile-pel I-4VU.
2. CDD's FY 2025-2026 requested budget includes resources and expenditures to maintain its current
level of services. Fee increases are based on the following factors:
a. A 2% increase in ICC building valuation effective April 1, 2025.
b. The elimination of the General Fund to cover actual cost of hearing services.
c. Hearing services for land use and code enforcement hearings of $50K.
The discontinuation of one-time Transient Room Tax revenue and one-time increase in Road
Department MOU for Senior Transportation Planner.
e. Personnel related increases for COLA, HBF, PERS, and step increases.
f. Personnel reduction of $257K for vacancy savings.
g. A 7.1% overall decrease in Internal Service Charges.
h. Inflationary increases in materials & services.
i. Resumption of vehicle replacement contributions.
3. Budgeted expenditures exceed budgeted revenues by $1.4M, balanced through requested fee
increases ($642K) and reserve transfers ($828K).
4. Special Request:
a. New vehicle for Building Inspector III FTE was approved on March 5, 2025. The vehicle will not be
purchased until the position is hired and after the current vehicle fleet is assessed.
Page 29
II. FEE ADJUSTMENTS
CDD proposes the following fee changes to its FY2025-2026 fee schedule:
The requested fee increases offset inflationary costs and the difference between projected operating
expenditures and revenues, allowing the department to maintain current and anticipated service levels.
• Administrative Fees - .02%
o Code Compliance Fee —from .35% to .37%
o Public Counter Information Fee - from .45% to .47%
o Advanced Planning Fee —from .44% to .46%
Application Fees:
o Building Safety Permits — 0%
■ Exception —fees based on staff hourly rates — increased 10%
o Onsite Wastewater and Electrical Applications— 20%
o Current Planning— 15%
International Code Council increase to building valuation calculation:
The International Code Council (ICC) building valuation table identifies the average construction cost per
square foot by type of construction, which is used by building jurisdictions when calculating permit fees. The
ICC building valuation table in Accela is updated each April 11t by the State of Oregon and does not change
Desrhlltes Countv's fee schedule.
Effective April 1, 2025, average construction cost per square foot increased 2%.
CDD proposes adding the following fees for FY 2025-2026:
1. CDBS NEW — Master plan set-up fee - $500 — accounts for master plan set-up costs.
2. CDBS NEW — Master plan reviews greater than > 1— 50% of initial plan review - reduces costs for
developers building model homes.
3. CDBSE NEW — Master electrical permit inspection — $137.50 per hour - allows tracking of inspections
for the master electrical program.
4. CDES NEW — Other Alternative Systems — Individual Customer and Service Providers beginning
1/1/2026 — $100 - transitions fee increases to a calendar year timeline. This supports onsite installer
administrative processes.
5. CDPN NEW — Development Agreement — $7,000 - specifies terms and conditions for the development
of a specific property. Differs from an Improvement Agreement in that a Development Agreement
does not include public improvements.
6. CDPN NEW — Improvement Agreement — Termination — $990 - allows for cost recovery for processing
terminated agreements for public improvements.
7. CDPN NEW — RV's as Rental Dwellings — $1,010 - implements SB 1013 aimed at balancing the need
for affordable housing.
-2-
Page 30
CDD proposes the following maintenance items for FY 2025-2026:
1. Various description enhancements for clarity.
2. Remove CDBSMP 2 — MH Park Installation - duplicate fee.
3. Align CDPN 4 - Historic ADU and CDPN NEW - RV's as Rental Dwelling fees with CDPN 1- Accessory
Dwelling Unit Review - $1,010.
4. Set CDPN 65 - Outdoor Mass Gathering Renewal fee to 50% of CDPN 64 - Outdoor Mass Gathering
Fee - $2,621.
In addition to CDD's requested fee increases, revisions, and maintenance items, the following fee
increases apply to partner organizations' System Development Charges (SDC's):
• Road Department Transportation SDC's — est. increase of 2.9%, see attached memo.
• Bend Park and Recreation District: SDC's will be adopted on May 20, 2025, see attached memo.
-3-
Page 31
Date: March 21, 2025
To: Nick Lelack, County Administrator
From: Chris Doty, Road Department Director
RE: SDC Inflation Adjustment per ENR Construction Cost Index
Per Resolution 2024-038, the County's Transportation System Development Charge (SDC) is prescribed to be
adjusted annually to account for inflation, as follows:
Section 4(G): Unless otherwise adjusted by order of the Board of County Commission, on each
succeeding July 1 after 2024, the SDC, consisting of the improvement fee, the reimbursement, if any
and the administrative recovery charge shall be adjusted by the annual percentage increase or
decrease in the construction cost index, published in the immediately preceding January by the
Engineering News Record for the City of Seattle, Washington. The calculation shall use the immediately
preceding July 1 and the then -applicable rate per peak hour trip as the siarung poirn.
Per the Engineering News Record, the construction cost index within the Seattle, WA area from January 2024
to January 2025 reports an increase of 2.9%.
In accordance with Resolution 2024-038, the Transportation SDC will increase 2.9% (+165) from $5,691 per
peak hour trip to $5,856 (effective July 1, 2025) with fee component breakdown as follows:
Improvement Fee: $4,357
Reimbursement Fee: $1,427
Administrative Charqe: $ 72
Total: $5,856 (per peak hour trip)
For a single family residential unit, this equates to an SDC of $4,743 based on the
County's local trip generation rate of 0.81 PM peak hour trips per unit.
61 150 SE 27th Street Bend, Oregon 97702
(541) 388-6581 road@deschutes.org 11 www.deschutes.org
Page 32
Bend Park &
Recreation
D 1 5 T R I C T
March 19, 2025
Dear Stakeholder,
Subject: Parks System Development Charge Methodology Report Available for Review
The Bend Park and Recreation District (district) is proposing to adopt a new SDC methodology
report, project list and parks system development charges. The SDCs are one-time fees assessed
to new developments to help fund the cost of parks, trails and recreation facilities to serve a
growing population. The district updated its SDC methodology framework in 2019; the current
update utilizes the same framework and incorporates the updated project list and level of service
analysis, as well as more recent information on population, overnight visitor projections and
occupancy rates.
The Bend Park and Recreation District Board of Directors will hold a public hearing on adoption of a
new Parks SDC Methodology on Tuesday, May 20, 2025, at 5:30 pm at 799 SW Columbia Street,
Bend, Oregon. If adopted, the proposed SDCs will go into effect for all applicable permits applied
for on or after July 1, 2025.
The proposed SDC methodology report, along with additional information about SDCs, is available
on the BPRD website (see links below). Hard copies of the methodology report are available at the
district office at 799 SW Columbia Street, Bend.
Links
• Methodology Report: SDC Methodology 2025 Draft Report
• Methodology Background: https_//www.bendDarksandrec.org/a_bout/sdc/
If you have questions or comments, please contact Kristin Toney at 541-706-6109 or
kristintpbendaarksandrec orb. Comments may also be sent via the project website:
https://www.bendparksandrec.org/about/sdc/
Thank you,
Sara Anselment, Park Planner
District Office
799 S.W Columbia St., Bend, Oregon 97702 1 bendparksandrec.org 1 541-389-7275
Page 33
To: Board of County Commissioners
Camilla Sparks, Budget Manager
From: Arielle Samuel, Health Services Operations Manager
CC: Janice Garceau, Health Services Director
Cheryl Smallman, Health Services Business Officer
Date: 4/ 10/2025
Re: FY 2026 Health Services Fee Changes
Summary of Changes:
Behavioral Health billable rates are increasing by 11% on average. The majority of Public Health
fees are mandated by the State. All other fees, pursuant to County Code Section 4.12.030, are
proposed to receive an annual adjustment commensurate with the consumer price index (CPI).
Summary of Fee Increase (by Program) from FY 2023 through FY 20261
Program
2023
2024
2025
2026
Behavioral Health Fees
-5% (1)
11%
22%
11%
Actual Cost of Service & Medicaid
Vital Records
0%
0%
0%
0%
Fees Mandated by State
Patient Office & Well Service Visits
7%
6%
4%
3%
Actual Cost of Service
Targeted Case Management
0%
0%
0%
0%
Fees Mandated by State
Procedures
7%
6%
4%
3%
Actual Cost of service
Immunizations
3%
3%
3%
3%
Fees Mandated by State
Laboratory Processing Specimen
0%
0%
0%
0%
Actual Cost of Service
In -House Testing & Injections
0%
0%
0%
0%
Actual Cost of Service
Diabetes Prevention
80%
18% (11)
-20%
(Ill) removed Ov)
Fees Mandated by State
Environmental Health
7%
10%
4%
5%
(1) Increased budgeted vacancy rate frorn 6% to 10%, resulting in overall decrease in fees.
(11) Medicaid increase on average 8.5%, whereas Medicare rate nearly doubled_
(Ill) Medicare decreased an average 30%, whereas Medicaid increased approximately 10%.
(IV) Service category is no longer offered by Deschutes County Health Services.
Percentage is calculated from previous year and rounded to nearest whole number.
Page 34
Behavioral Health
Health Services utilizes a "unit cost calculator" tool to set the behavioral health service fees at
"Actual Cost of Service." This tool was created to provide Oregon Community Mental Health
Programs with a standardized, reliable methodology for calculating unit costs for services. The
outputs/fees recommended by this calculator are used to justify the dollar amount charged for
services provided by Behavioral Health, both to outside parties and clients. Health Services
Department accommodates clients with an inability to pay by applying a sliding fee scale based
on an individual's income in comparison to the Federal Poverty Guidelines.
The primary inputs to the fee setting formula are budgeted expenditures, FTE count of direct
service personnel, type of direct service personnel, and number of hours available for services.
These figures are consistent with the FY 2026 Requested Budget. Using the inputs, the model
calculates a billable rate for each service provided by type of direct service personnel. Billable
rates are summarized on the County's fee schedule by service or type of direct service personnel.
The update to the unit cost calculator for FY 2026 resulted in an average net increase to billable
rates of 11 %. The actual range of change experienced amongst the different service types and
direct service personnel types was 1.2% to 32% increase. Specifically, direct -service provider
salaries totaled $14.1 million across 180.1 FTE at time of Requested Budget for FY 2025
whereas salaries totaled $15.3 million across 182.1 FTE in FY 2026.
Public Health
Due to the closure of the Reproductive Health clinic in FY 2025, a number of reproductive
health specific procedures are removed from the Public Health fee schedule for FY 2026.
Additionally, Public Health removed the Diabetes Prevention services category because they no
longer offer these services and do not anticipate offering them again in the future.
Vital Records certificate fees are mandated by the State of Oregon. We are proposing to convert
the online credit card processing fee from a percentage of each transaction to the average actual
fees charged by our credit card processing vendor.
Public Health fees for Patient Office Visits and Well Service Visits are calculated based on an
actual cost analysis completed in FY 2016. The formula for calculating the fees is dictated by the
Oregon Health Authority. The FY 2026 fees for Office Visits and Well Services are increased by
2.5%, commensurate with the annual change in the CPI.
STD and HIV Patient Office Visits are calculated by actual cost of service based on analysis
from FY 2021 and are increased by 2.5% commensurate with the annual change in CPI.
Medical Procedures are increased by 2.5% commensurate to the annual change in CPI.
2577 NE Courtney Drive, Bend, Oregon 97701
(541) 322-7500 @-1eaIthservices@deschutes .org vww.deschutes.org/health
Page 35
Family Connects Oregon case rates are increasing by 45% for commercial insurance carriers in
FY 2026. Prices for Medicaid and commercial are set by the State of Oregon.
Certified Community Health Worker Program allows Perinatal Care Coordination team
members who are certified Community Health Workers to bill for care coordination services.
Charges are set by the State and fees have increased an average of 11 %.
Fees for the Immunizations (inel. Special Programs & Vaccines) program are mandated by the
Department of Human Services and adjust on a semi-annual basis. The most recent mandated
fees reflect an average 3% increase.
The Environmental Health program is proposing a general fee increase of 5%.
There are no proposed changes to the following fees for FY 2026:
• In -House Testing & Injections
• Vital Records (fees mandated by the State of Oregon)
• Laboratory Processing Specimen fees and various handling fees reflect actual cost of
services and have not changed
• Targeted Case Management (fees mandated by the Department of Human Services)
2577 NE Courtney Drive, Bend, Oregon 97701
QI(541) 322-7500 ealthservices@)deschutes.org vww.deschutes.org/health
Page 36
To: Budget Committee
From: Kristie Bollinger, Property Manager
Ryan Dunning, Property Analyst
Date: April 23, 2024
Re: FY2025 Property Management Fee Schedule
Historically, when a tax foreclosed property is sold at auction or post -auction, proceeds offset
expenses associated with the management and supervision of any tax foreclosed properties within
the County's inventory, including an annual transfer to the General Fund to provide funding for the
Property Management program. At the end of the fiscal year, all remaining proceeds are distributed
to the taxing districts.
Because of the outcome of the Supreme Court case Tyler v. Hennepin (Minnesota) that prompted
Oregon House Bill 4056 in the 2024 short session, sales proceeds from a tax foreclosed property
may only be applied to expenses associated with that single property. Remaining proceeds, may be
refunded to the prior owner on a case -by -case basis and will further be informed by Oregon
Revised Statute. The current legislative session, including HB 2089, will include additional changes
to ORS that will continue to impact proceeds and processes associated with distribution to prior
property owners.
After further discussion with County Counsel and Finance, it was determined that charging a flat fee
from sales proceeds by determining actual cost of service for the preparation and execution of
selling a tax foreclosed property at auction or post -auction, is equitable. Therefore, the current fee
of 12% of the sales price has been modified to a flat amount of $4,500 for each property sold at
auction, which will be allocated to Property Management (general fund) from the sales proceeds.
This fee will be reviewed annually and adjusted based on the actual cost of service and new
required tasks to be completed by staff associated with legislative changes impacting ORS.
Mailing: PO Box 6005 Bend, Oregon 97708
(541) 385-1414 Kristie.Bollinger@deschutes.org www.deschutes.org
Page 37
� J� L:4 t- 0
To: Board of County Commissioners
From: Captain William Bailey
Date: April 7, 2025
Re: Fee Schedule Change for Information Technologies Video and Redaction Services
Reason for Change:
An adjustment to the fee schedule is necessary to align the pricing structure with the
current compensation rates for IT staff, including their wages and benefits. This change
ensures that the cost of services more accurately reflects the resources and expertise
required to provide quality video review and redaction.
The new fee structure will be based on an average IT employee's wage plus benefits,
which will be calculated on an annual basis and reviewed periodically to reflect any
changes in compensation. The exact hourly rate will be determined as follows:
Hourly Rate = (Average IT Employee Wage) + (Benefits Costs)
This change will ensure the fees remain sustainable and continue to support the quality
and reliability of the services we provide.
Page 38
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Establishing Temporary No Parking
Zones Within the Public Right of Way of
China Hat Road, Horse Butte Road, and ORDER NO. 2025-019
Knott Road in Deschutes County, Oregon
and Directing Signs Be Posted.
WHEREAS, Horse Butte Road and segments of China Hat Road and Knott Road are part of the
county road system under the jurisdiction and authority of Deschutes County; and
WHEREAS, the parking of vehicles within the public rights -of -way of said County roads
constitutes a safety hazard to the traveling public; and
WHEREAS, it appears necessary that parking of vehicles be intermittently prohibited within the
ni ihlir rinhtc-of-%niav of said rnnrls• and
WHEREAS, ORS 810.160 provides Deschutes County authority to regulate, control, or prohibit
parking vehicles upon public roads under County jurisdiction; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON HEREBY
ORDERS as follows:
Section 1. That temporary no -parking zones be established as deemed necessary by the Road
Department Director within the public rights -of -way of Horse Butte Road and the county road segments
of China Hat Road and Knott Road.
Section 2. That the Road Department shall install appropriate signs or markings giving notice of
the no -parking zones.
Section 3. That the signs installed pursuant to this order comply with applicable provisions of the
Oregon Vehicle Code.
Section 4 That this order shall become effective and have the force of law when signs or
markings giving notice thereof have been placed.
Section 5. That this order shall expire on December 31, 2025.
Page 1 of 2- Order No. 2025-019
DATED this day of
ATTEST:
Recording Secretary
2025.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DEBONE, CHAIR
PATTI ADAIR, VICE CHAIR
PHIL CHANG, COMMISSIONER
Page 2 of 2- Order No. 2025-019
N�vi E S
BOAR® OF
COMMISSIONERS
MEETING DATE: May 7, 2025
SUBJECT: Consideration of first reading of an ordinance amending Deschutes County Code
regarding Temporary Hardship Dwellings
RECOMMENDED MOTION:
Move approval of first reading of Ordinance No. 2025-005 by title only.
BACKGROUND AND POLICY IMPLICATIONS:
On May 7, 2025, staff will present Ordinance No. 2025-005 to the Board of County
Commissioners (Board) for consideration of first reading. On April 23, 2025, the Board
conducted a public hearing and deliberations to consider legislative text amendments to
Title 18 of the Deschutes County Code relating to temporary hardship dwellings. The Board
voted 2-0 to adopt the proposed package as drafted by staff.
BUDGET IMPACTS:
None
ATTENDANCE:
Nicole Mardell, AICP, Senior Planner
Will Groves, Planning Manager
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Nicole Mardell, AICP, Senior Planner
DATE: April 30, 2025
SUBJECT: Consideration of First Reading: Temporary Hardship Dwelling Text
Amendments
On May 7, 2025, staff will present Ordinance No. 2025-005 to the Board of County
Commissioners (Board) for consideration of first reading. On April 23, 2025, the Board
conducted a public hearing and deliberations to consider legislative text amendments to
Title 18 of the Deschutes County Code relating to temporary hardship dwellings (file no. 247-
25-000078-TA). The Board voted 2-0 to adopt the proposed package as drafted by staff. The
ordinance attached hereto will formally adopt the amendment package.
Staff submitted a Post -Acknowledgement Plan Amendment (PAPA) notice to the Department
of Land Conservation and Development (DLCD) on February 6, 2025. The Planning
Commission held a public hearing on March 13, 20251. The Commission held deliberations
on March 27, 20252 and voted 6-0 to recommend approval of the proposed amendments
drafted by staff, with a revision to exclude the use of existing buildings as a hardship dwelling
type in the RR-10 and MUA-10 zones3.
1. RECORD
The record, which contains all memoranda, notices, and written testimony received, is
available at the following website: https://bit.ly/25-78-TA.
II. OVERVIEW OF ORDINANCE
This is a legislative text amendment to Deschutes County Code (DCC), Title 18, County Zoning.
The primary purpose of the amendment is to conform local requirements to state law and
1 https•//www deschutes.or /g bc-pc/page/planning-commission-63
2 https•//www.deschutes.org/bc-pc/page/planning-commission-64
3 As noted below, the package reviewed by the Board included this revision.
provide consistency for the review of hardship dwellings across multiple county zones.
Notable changes include:
• Reorganized content for readability;
• Amended outdated references;
• Clarified hardship dwelling can be used
for the "aged" as well as the Infirmed";
• Clarified "existing building" use and
definition for the purpose of the section;
• Clarified hardship dwelling can be the
only second dwelling on the property;
• Amended renewal requirement from
every one year to two years;
• Listed the use in all permissible zones for
readability.
The original version of the amendments, reviewed by the Planning Commission, proposed to expand use
of an existing building as a hardship dwelling type to several zones, including the RR-10 and MUA-10
zones. OAR 660-004-0040(8)(f) provides specific guidance for hardship dwellings in these zones, noting
the dwelling type must be either a Recreational Vehicles (RVs) or manufactured home. Upon discovering
this provision, the Planning Commission (in consultation with staff) recommended the Board exclude this
proposed allowance. Staff updated the proposed text amendment package to reflect the
recommendation prior to the Board's public hearing.
Ill. NEXT STEPS
Staff will return on Wednesday, May 21, 2025, for Second Reading of Ordinance 2025-005
Attachments:
Ordinance No. 2025-005 and Corresponding Exhibits
-2-
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending the Deschutes County Code
Title 18, Zoning Ordinance Relating to Temporary * ORDINANCE NO. 2025-005
Hardship Dwellings.
WHEREAS, the Deschutes County Community Development Department ("CDD") initiated
amendments (Planning Division File No. 247-25-000078-TA) to the Deschutes County Code ("DCC") Chapter
18.16 — Exclusive Farm Use Zone, Chapter 18.32 — Multiple Use Agricultural Zone, Chapter 18.36 — Forest Use
Zone; F-1, Chapter 18.40 — Forest Use Zone; F-2, Chapter 18.60 — Rural Residential Zone, RR-10, Chapter
18.65 — Rural Service Center, Chapter 18.66 — Terrebonne Rural Community Zoning Districts, Chapter 18.67 —
Tumalo Rural Community Zoning Districts, Chapter 18.74 — Rural Commercial Zone, Chapter 18.108 —
Unincorporated Community Zone; Sunriver, Chapter 18.110 — Resort Community Zone, Chapter 18.116 —
Supplementary Provisions; and
WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on March 13,
2025, and forwarded to the Deschutes County Board of County Commissioners ("Board") a 6-0
recommendation of approval; and
WHEREAS, the Board considered this matter after a duly noticed public hearing on April 23, 2025, and
concluded that the public will benefit from the proposed changes to the Deschutes County Code Title 18; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDING. Chapter 18.16, Exclusive Farm Use Zone, is amended to read as described
in Exhibit "A" attached hereto and by this reference incorporated herein, with new language underlined and
language to be deleted in stri .ph.
Section 2. AMENDING. Deschutes County Code Chapter 18.32 Multiple Use Agricultural Zone, is
amended to read as described in Exhibit "B", attached hereto and by this reference incorporated herein, with
new language underlined and language to be deleted in stFik�h.
Section 3. AMENDING. Deschutes County Code Chapter 18.36, Forest Use Zone; F-1, is amended to
read as described in Exhibit "C", attached hereto and by this reference incorporated herein, with new language
underlined and language to be deleted in str-ik�gh.
PAGE I OF 3 - ORDINANCE NO.2025-005
Section 4. AMENDING. Deschutes County Code Chapter 18.40, Forest Use Zone; F-2, is amended to
read as described in Exhibit "D", attached hereto and by this reference incorporated herein, with new language
underlined and language to be deleted in strike.
Section 5. AMENDING. Deschutes County Code Chapter 18.60, Rural Residential Zone, RR-10, is
amended to read as described in Exhibit "E", attached hereto and by this reference incorporated herein, with
new language underlined and language to be deleted in tri'�gh.
Section 6. AMENDING. Deschutes County Code Chapter 18.65, Rural Service Center,
Unincorporated Community Zone, is amended to read as described in Exhibit "F", attached hereto and by this
reference incorporated herein, with new language underlined and language to be deleted in str-ikethFeugh.
Section 7. AMENDING. Deschutes County Code Chapter 18.66, Terrebonne Rural Community
Zoning Districts, is amended to read as described in Exhibit "G", attached hereto and by this reference
incorporated herein, with new language underlined and language to be deleted in str-ice=
Section 8. AMENDING. Deschutes County Code Chapter 18.67, Tumalo Rural Community Zoning
Districts, is amended to read as described in Exhibit "H", attached hereto and by this reference incorporated
herein, with new language underlined and language to be deleted in stfik�gh.
Section 9. AMENDING. Deschutes County Code Chapter 18.74, Rural Commercial Zone, is
amended to read as described in Exhibit "I", attached hereto and by this reference incorporated herein, with new
language underlined and language to be deleted in strikethrough.
Section 10. AMENDING. Deschutes County Code Chapter 18.108, Unincorporated Community Zone;
Sunriver, is amended to read as described in Exhibit "J", attached hereto and by this reference incorporated
herein with new language underlined and laneua2e to be deleted in stfike eh.
Section 11. AMENDING. Deschutes County Code Chapter 18.110, Resort Community Zone, is
amended to read as described in Exhibit "K", attached hereto and by this reference incorporated herein, with
new language underlined and language to be deleted in tr4'�.
Section 12. AMENDING. Deschutes County Code Chapter 18.116, Supplementary Provisions, is
amended to read as described in Exhibit "L", attached hereto and by this reference incorporated herein, with
new language underlined and language to be deleted in stri'r gh.
Section 13. FINDINGS. The Board adopts as its findings Exhibit "M," attached and incorporated by
reference herein.
PAGE 2 OF 3 - ORDINANCE NO.2025-005
Dated this of _ , 2025 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DeBONE, Chair
PATTI ADAIR, Vice Chair
ATTEST:
Recording Secretary PHILIP CHANG, Commissioner
Date of 1" Reading: day of , 2025.
Date of 2"d Reading: day of , 2025.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone
Patti Adair
Philip Chang
Effective date: day of , 2025.
PAGE 3 OF 3 - ORDINANCE NO.2025-005
Exhibit A to Ordinance 2025-005
18.16.050 Standards -for Dwellings In the EFU Zones
Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under the conditions set forth
below for each kind of dwelling, and all dwellings are subject to the landowner for the property
upon which the dwelling is placed, signing and recording in the deed records for the County, a
document binding the landowner, and the Landowner's successors in interest, prohibiting them
from pursuing a claim for relief or cause of action alleging injury from farming or forest practices for
which no action or claim is allowed under ORS 30.936 or 30.937.
H. Temporary hardship dwelling.
1. Atemporary hardship dwelling listed in DCC 18.16.030 is allowed tirade; the
subject to DCC 18.116.090, and the requirements of this
chapter.
. ..... . .....
•J•!!\�!![!-i'1'I�INYl���1 \Pl\mil•►•J��J•IiJY �I�f \il l�f Y[�!•�l•��FrJ�1 �I
ip,
ip
-----------------
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---- ---------- --lag
.
Exhibit Ato Ordinance 2025-005
-----------------
Pq" �-- �- B - - - - - - -
2. A temporal hardship dwelling approved under this section is not eligible for
replacement..under DCC 18.1.6.020 J
HISTORY
Adopted by Ord. PL-15 on 111111979
Repealed & Reenacted by Ord. 91-020 §1 on 512911991
Amended by Ord. 91-038 01 and 2 on 913011991
Amended by Ord. 92-065 §3 on 1112511992
Amended by Ord. 94-026 §1 on 511111994
Amended by Ord. 95-007§15 on 31111995
Amended by Ord. 98-030 §1 on 511311998
Amended by Ord. 98-033 §1 on 121211998
Amended by Ord. 2004-001 §2 on 711412004
Amended by Ord. 2004-0.13 §2 on 912112004
Amended by Ord. 2004-020§1 on 1011312004
Amended by Ord. 2008-001. §2 on 5/6/2008
Amended by Ord. 2009-014 §1 on 612212009
Amended by Ord. 2012-007§2 on 51212012
Amended by Ord. 2014-010 §1 on 412812014
Amended by Ord. 2018-006 §5 on 1112012018
Amended by Ord. 2.021-0.13 §4 on 41512022
Amended by Ord 2025-002 §4 on 312812025
Amendedby Ord. 2025-005 §1_ on 542112025
Exhibit Ato Ordinance 2025-005
Exhibit B to Ordinance 2025-005
18.32.0.10 Purpose
18.32.020 Uses Permitted Outright
18.32.030 Conditional Uses Permitted
1.8.32.035 Destination Resorts
18.32.040 Dimensional Standards
18.32.050 Setbacks
1.8.32.060 Ordinary-Hig Water Mark Setbacks
18.32.070 Rimrock Setback
18.32.020 Uses Permitted Outright
The following uses and their accessory uses are permitted outright:
A. Agricultural uses as defined in DCC Title 18.
B. A single -unit dwelling, or a manufactured dwelling subject to DCC 18.116.070.
C. Propagation or harvesting of a forest product.
D. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards and criteria established by DCC 18.116.230.
E. Class III road or street project.
F. Noncommercial horse stables, excluding horse events.
G. Horse events, including associated structures, involving:
1. Fewer than 10 riders;
2. Ten to 25 riders, no more than two times per month on nonconsecutive days; or
3. More than 25 riders, no more than two times per year on nonconsecutive days.
Incidental musical programs are not included in this definition. Overnight stays by
participants, trainers or spectators in RVs on the premises is not an incident of such
horse events.
H. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation
District except as provided in DCC 18.120.050.
I. Type 1 Home Occupation, subject to DCC 18.116.280.
J. A historic accessory dwelling unit, subject to DCC 18.116.350.
K. A residential accessory dwelling unit, subject to DCC 18.116.355.
L. Residential Home.
Exhibit B to Ordinance 2025-005
M. A recreational vehicle as a rental dwelling, subject to 18.116.095(D).
N. Temporary Hardship Dwelling, subject to DCC 18.116.090.
HISTORY
Adopted by Ord. PL-15 on 111111979
Amended by Ord. 91-002 §6 on 2/6/1991
Amended by Ord. 91-005 §18 on 3/4/1991
Amended by Ord. 91-020 §1 on 5/29/1991
Amended by Ord. 91-038 §1 on 9/30/1991
Amended by Ord. 93-001 §1 on 112711993
Amended by Ord. 93-043 §4 on 812511993
Amended by Ord. 94-008 §10 on 6/8/1994
Amended by Ord. 2001-016 §2 on 312812001
Amended by Ord. 2001-039 §2 on 1211212001
Amended by Ord. 2004_-002 §3 on 412812004
Amended by Ord. 2019-009 §1 on 9/3/2019
Recorded by Ord. 2019-009 §1 on 9/3/2019
Adopted by Ord. 2023-014 §1 on 121112023
Amended by Ord. 2024-008 §4 on 11712025
Amended by Ord. 2025-002 §6 on 3/28/2025
Amended by Ord. 2025-004 §2 on 51712025
Amended by Ord. 2025-005 §2 on 512112025
Exhibit B to Ordinance 2025-005
Exhibit C to Ordinance 2025-005
18.36.010 Purpose
18.36.020 Uses Permitted Outright
18.36.030 Conditional Uses Permitted
18.36.040 Limitations On Conditional Uses
1.8.36.050 Standards For Sirnale-Unit Dwellings
18.36.060 Siting Of Dwellings And Structures
18.36.070..Fire Sitin Standards For_.Dweltings And Structures
18.36.080 Fire Safety Design Standards For Roads.
18.36_085_.Stocking Requirement
18.36.090 Dimensional Standards
18.36.100 Setbacks
18.36.110 Ordinary High Water Mark Setbacks
18.36.120 State Law Controls
18.36.130 Rimrock Setbacks
18.36.140 Restrictive Covenants
The following uses and their accessory uses may be allowed in the Forest Use Zone, subject to
applicable provisions of the Comprehensive Plan, DCC 18.36.040 and other applicable sections of
DCC Title 18.
building,X. An existing . dweffing in conjunction with an existing dweilimg as
a temporary use for the term of a hardship suffered by the existing resident or a reiative as
defined in ORS 215.283. For the :. :: _ _--
in existence on or before Plarch • 20 Te m .. .. .. - - :- .- :- ..
1. Atemporary dwelling for medical hardshW_is conditionally -allowed subject to the
18.116.090. as wall i
as DCC 18.36.040 and 18.36.060
:: ; hardship or
subjectfoa, the care of an aged or infirm person or persons.
2. The use shali be ; _
.. - ..
used by -- existing dweRings if that disposal system s adequate to aeeormniodate
the addit:onai :.
A temporary hard�h� dwelling restdertee approved under this subsection is not
eligible for repiacernent under OAR 660-006-025.
HISTORY
Adopted by Ord. PL-15 on 11/1/1979
Amended by Ord. 86-018 §8 on 6/30/1986
Amended by Ord. 90=014 §28 on 7/12/1990
Amended by Ord. 92-025 §2 on 4/15/1991
Amended by Ord. 91--038§1 on 913011991
Amended by Ord. 92-068 §1 on 12/7/1992
Amended by Ord. 94-038 §1 on 101511994
Amended by Ord.2000=033§1 on 121612000
Amended by Ord. 2004-020 §6 on 1011312004
Amended by Ord. 2007--020 §4 on 2/6/2008
Amended by Ord. 2012-007 §4 on 51212012
Amended by Ord. 2018-006 §7 on 1112012018
Amended by Ord. 2020-007§11 on 10/27/2020
Amended by Ord 2025-002 §7 on 312812025
Amended y Ord. 2025-005 §3 on 5/21/2025
Exhibit C to Ordinance 2025-005
Exhibit D to Ordinance 2025-005
18.40 010 Purpose
18.40.020 Uses Permitted Outright
18.40_030 Conditional Uses_Permitted
18.40.040 Limitations On Conditional Uses
18.40.050 Stardards_For Sin le -Unit Dwellin s
18 40.060 Sitin Of Dweltin s And Structures
18.40.070 Fire Siting-S_tandards For aweltinga And Structures
18.40.080 Fire Safety Design Standards For Roads
_18_40.085 Stocking Requirement
18.40.090 Dimensiora[ Standards.
18.40.100 Setbacks
18.40.110.Ord, r ar_Hig-h WM
ater ark Setbacks-
1_8..40.120-State Law Controls
18.40.130 Rimrock Setback
18. 40.030 Conditional Uses Permitted
The following uses and their accessory uses may be allowed in the Forest Use Zone, subject to
applicable provisions of the Comprehensive Plan, DCC 18.40.040 and other applicable sections of
n(-('. Title 18:
:.
- : s - -.
:. :: :
• eLving
- ••••
Atem�orsry hardship dwellin is conditionals allc wed subject to the provisions in
18.116.090,18. 00.040, and-18.40.060 of this chapter._
--
5. A temporary residence approved under this subsection is not eligible for
replacement under OAR 660-006-025.
HISTORY
Adopted by Ord. PL-15 on 111111979
Amended by Ord. $6-018 §8 on 6/30/1986
Amended by Ord. 90=014 §28 on 711211990
Amended by Ord. 927-02-5 §2 on 4/15/1991
Amended by Ord. 91--038§1 on 9/30/1991
Amended by Ord. 92- 668 §1 on 121711992
Amended by Ord. 94-038 §1 on 101511994
Amended by Ord. 2000-033 §1 on 121612000
Amended by Ord. 2004-020 §6 on 10/1312004
Amended by Ord. 2007-020 §4 on 21612008
Amended by Ord. 2012-007 §4 on 51212012
Amended by Ord. 2018-006 §7 on 1112012018
Amended by Ord. 2020-007§11 on 1012712020
Amended by Ord. 2025-002 §8 on 3/28/2025
Amended by Ord. 2025-005 §4 on 5/21/2028
Exhibit D to Ordinance 2025-005
Exhibit E to Ordinance 2025-005
18.60. 110 Pu-rPose_s
18.60.020 Uses Permitted Outright
18. 00.030 Conditional Uses Permitted.
18.60.035 Destination Resorts
18.60.040 Setback Requirements
18.60_050 Ordi.nar High Water Mark Setback
18.60.060 Dimensional Standards
18.60.070 Limitations On Conditional LLes
1.8.60.08 RRimrock Setback
18.60.090 Ore90n Water Wonderland_Unit 2 Sewer_District Limited Use Combining Zone.
The following uses and their accessory uses are permitted outright.
A. A single -unit dwelling, or a manufactured dwelling subject to DCC 18.116.070.
B. Utility facilities necessary to serve the area including energy facilities, water supply and
treatment and sewage disposal and treatment.
C. Community center, if shown and approved on the original plan or plat of the development.
D. Agricultural use as defined in DCC Title 18.
E. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards and criteria established by DCC 18.116.230.
F. Class III road or street project.
G. Noncommercial horse stables as defined in DCC Title 18, excluding horse events.
H. Horse events, including associated structures, involving:
1. Fewer than 10 riders;
2. Ten to 25 riders, no more than two times per month on nonconsecutive days; or
3. More than 25 riders, no more than two times per year on nonconsecutive days.
Incidental musical programs are not included in this definition. Overnight stays by
participants, trainers or spectators in RVs on the premises is not an incident of such
horse events.
I. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation
District except as provided in DCC 18.120.050.
J. Type 1 Home Occupation, subject to DCC 18.116.280.
Exhibit E to Ordinance 2025-005
K. A historic home accessory dwelling unit, subject to DCC 18.116.350.
L. A residential accessory dwelling unit, subject to DCC 18.116.355.
M. Residential Home.
N. A recreational vehicle as rental dwelling, subject to 18.116.095(D).
O. Temporary Hardsh Dwelling subject to DCC 18 116 090.
HISTORY
Adopted by Ord. EL-15 on 111111979
Amended by Ord. 91-005 030 & 31 on 31411991
Amended by Ord. 91-020 §1 on 512911991
Amended by Ord. 93-043 §8 on 8/25/1993
Amended by Ord. 947008 §12 on 6/8/1994
Amended by Ord. 2001_-01.6 §2 on 312812001
Amended by Ord. 2001-039 §5 on 12/12/2001
Amended by Ord. 2004-002 §7 on 4/28/2004
Amended by Ord. 2019-009 §2 on 9/3/2019
Recorded by Ord. 2019-009 §2 on 91312019
Adopted by Ord. 202.3-014. §2 on 121112023
Amended by Ord. 2024-0008 §7 on 11712025
Amended by Ord. 2025-002 §12 on 3/28/2025
Amended by Ord. 2025-004 §3 on 51712025
Amended by 0rd..2U25-0v5 do a/c i/cvc
Exhibit E to Ordinance 2025-005
Exhibit F to Ordinance 2025-005
18_65.010 Pose
18.65.020 RSC Commercial/Mixed Use District Brothers,. Hampton Millican Whisttestop And
Wildhunt�
18_65.021 Alfalfa RSC Commercia -Mix— Use District
18.65.022 Alfalfa RSC Res.ide_ntial District
18.65.023 RSC;_Oaen -pace District
18.65.030 St —an d-a r _ds For All Districts
18.65.02®R-SC° Commercial/Mixed Use_®istrict (i3rothers. Hampton,M_il — anVVhistlestop
And Wildhunt)
A. Uses Permitted Outright. The following uses and their accessory uses are permitted
outright, subject to applicable provisions of this chapter:
1. A single -unit dwelling or a manufactured dwelling, subject to DCC 18.116.070.
2. Type 1 Home Occupation, subject to DCC 18.116.280.
3. Residential home.
4. A duplex.
5. Agricultural uses, as defined in DCC T itie is, and excluUlllg IIVeJLoc'- iccu Lotor
sales yard, and hog or mink farms.
6. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards and criteria established by DCC 18.116.230.
7. Class III road and street project.
8. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
9. Tem orar __Hardship Dwelling, subject to DCC 1.8.116.090.,
HISTORY
Adopted by Ord. 2002-002 §2 on 6/5/2002
Amended by Ord. 2002-028 §1 on 712412002
Amended by Ord. 2004 002 §11 on 412812004
Amended by Ord. 2 115- 004 §2 on 412212015
Amended by Ord. 20.16.015 §4 on 71112016
Amended by Ord. 2018-006 §8 on 11/20/2018
Amended by Ord. 2020-001 §6 on 412112020
Amended by Ord. 2022_014 _-�? on 41,112023
Amended by Ord. 2024-006§8 on 11712025
Amended by Ord. 2025--002 § 14 on 3/28/2025
Amended by Ord 2025-005 §6 on 512112025
18.65.021 Alfalfa RSC; Commercial/Mixed Use District
In Alfalfa, the following uses and their accessory uses are permitted:
A. Uses Permitted Outright.
1. A single -unit dwelling or a manufactured dwelling, subject to DCC 18.116.070.
2. Type 1 Home Occupation, subject to DCC 18.116.280.
3. Residential home.
4. Residential facility.
5. A duplex.
6. Agricultural uses, as defined in DCC Title 18, and excluding livestock feed lot or
sales yard, and hog or mink farms.
7. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards and criteria established by DCC 18.116.230.
8. Class III road and street project.
9. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
10. Tem orary Hardship_Dwel n subject to DCC 18_116.090.
HISTORY
Adopted by Ord. 2002 002 §2 on 6/5/2002
Amended by Ord. 2018-006 §8 on 1112012018
Amended by Ord. 2020-001 §6 on 412112020
Amended by Ord. 2022-014 §2 on 41412023
Amended by Ord. 2_024-008. §8 on 11712025
Amended by Ord. 2_025-002 §14 on 312812025
Anne _bY 2025=005 §6 on 5/21/2025
18.65°022 Alfalfa RSC,_Residential_District
A. Uses Permitted Outright. The following uses and their accessory uses are permitted
outright, subject to the applicable provisions of this chapter:
Exhibit F to Ordinance 2025-005
1. Agricultural uses, as defined in DCC Title 18, subject to the restrictions in DCC
18.65.021(D), and excluding livestock feed lot or sales yard, and hog or mink farms.
2. A single -unit dwelling, or a manufactured dwelling subject to DCC 18.116.070.
3. A duplex.
4. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
5. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards and criteria established by DCC 18.116.230.
6. Class III road or street project.
7. Type 1 Home Occupation, subject to DCC 18.116.280.
8. Residential home.
9. Temporary HardshipDwellin subject to DCC 18.116.0 0.
HISTORY
Adopted by Ord. 2002-002 §2 on 6/5/2002
Amended by Ord. 2002-028§1 on 712412002
Amended by Ord. 2004-002 §12 on 412812004
_ _ � i— n-,47n )n-nn 1 sn nn d/91 /2020
Hlner�ucu uy via. �_��_•, -- .... „- ••----
Amended by Ord. 2020 010 §2 on 71312020
Amended by Ord. 2024-008 §8 on 11712025
Amended by Ord. 2025-002 §14 on 3/28/2025
Amended Ord. 2025-005 §6 on 512112025
Exhibit F to Ordinance 2025-005
Exhibit G to Ordinance 2025-005
18.66.010 Purpose
18.66.020 Residentiai (TeR District
18.66.030 Residential-5 Acre Minimum T( eR5.YDistrict
18.66.040 Commercial TeC District
18.66.050 Commercial-RuraljTeCR�District
18.66.060 Standards For All Districts.
18.66.070 Right -Of -Wad Develo ment Standards
18.66.02® Residential (Ted_®istri0
The Terrebonne Residential District allows a mixture of dwelling types and densities suited to the
level of available water and sewer facilities. The purpose of this district is to allow new residential
development that is compatible with the rural character of the area.
A. Permitted uses. The following uses and their accessory uses are permitted outright and do
not require site plan review under DCC 18.124:
1. A single-family dwelling or a manufactured dwelling subject to DCC 18.116.070.
2. A duplex.
o T.
0yN-- 9 unmc fr..r.,i,nmaat_i.n_n..,s-u-h-.iP-c-t- t_o. DCC 18.116.280.
4. Agricultural uses as defined in DCC 18.04, involving:
a. Keeping of cows, horses, goats, sheep or similar farm animals, provided that
the total number of such animals over the age of six months is limited to the
lot area divided by 20,000 square feet.
b. Keeping of chickens, fowl, rabbits or similar farm animals, provided that the
total number of such animals over the age of six months does not exceed
one for each 500 square feet of lot area.
5. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards of DCC 18.66.070 and 18.116.230.
6. Class III road or street project.
7. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
8. Residential home.
9. Tem�orary Hardship Dwellin _subject to 18.116.090.
HISTORY
Adopted by Ord. 97-003 §2 on 6/4/1997
Amended by Ord. 977063 §3 on 1111211997
Amended by Ord. 2004-002 §13 on 412812004
Amended by Ord. 2020-001_ §7 on 412112020
Amended by Ord. 2020-010 §3 on 71312020
Amended by Ord. 2024-008 §9 on 11712025
Amended by Ord. 2025-002 §15 on 3/28/2025
Amended by Ord 2025-005 §Ion 512112025
18.66.®30 Residential�5 Acre Nlinirr'um W 5) ®OstOct
The purpose of the Terrebonne Residential-5 Acre Minimum District is to retain large rural
residential lots or parcels where community sewer and water are not available.
A. Permitted Uses. The following uses and their accessory uses are permitted outright and do
not require site plan review under DCC 18.124:
1. A single -unit dwelling or a manufactured dwelling subject to DCC 18.116.070.
2. A duplex.
3. Type 1 Home Occupation, subject to DCC 18.116.280.
4. Agricultural uses as defined in DCC 18.04, involving:
a. Keeping of cows, horses, goats, sheep or similar farm animals, provided that
the total number of such animals over the age of six months is limited to the
Lot area divided by 20,000 square feet.
b. Keeping of chickens, fowl, rabbits or similar farm animals over the age of six
months, provided that the total numbers of such animals does not exceed
one for each 500 square feet of lot area
5. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards of DCC 18.66.070 and 18.116.230.
6. Class III road or street project.
7. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
8. Residential home.
9. Tem_porary l-I ship Dwellin submit to. DCC 18 116.090.
Exhibit G to Ordinance 2025-005
HISTORY
Adopted by Ord. 97-003 §2 on 6/4/1997
Amended by Ord. 97-063 §3 on 1111211997
Amended by Ord. 2004-002 §14 on 412812004
Amended by Ord. 2020-001 §7 on 412112020
Amended by Ord. 2020-010 §3 on 71312020
Amended by Ord. 2024-008 §9 on 11712025
Amended by Ord. 2025-002 §15 on 312812025
Amendedby_Ord. 2025-005_ §Ion 512V2025
18.60.040 Commercial fTeCj District
The Terrebonne Commercial District is intended to allow a range of commercial and limited
industrial uses to serve the community and surrounding rural area.
A. Permitted Uses. The following uses and their accessory uses are permitted outright and do
not require site plan review under DCC 18.124:
1. A single -unit dwelling or a duplex on a lot or parcel existing on June 4, 1997.
2. A manufactured dwelling on a lot or parcel existing on June 4, 1997, subject to DCC
18.116.070.
3. Type 1 Home Occupation, subject to DCC 18.116.280.
4. Class I and II road or street project subject to approval as part ul a Land par itiO
subdivision or subject to the standards of DCC 18.66.070 and 18.116.230.
5. Class III road or street project.
6. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
7. Residential home on a lot or parcel existing on June 4, 1997.
8. Tem-porary Hardship welling, subject to.DCC__18.1.1.6.090.
HISTORY
Adopted by Ord. 97=0-03 §2 on 61411997
Amended by Ord. 97-063 §3 on 1111211997
Amended by Ord. 2004-002 §15 on 412812004
Amended by Ord. 2015-004 §3 on 412212015
Amended by Ord. 2016-015 §5 on 71112016
Amended by Ord. 2020-001 §7 on 412112020
Amended by Ord. 2020-010 §3 on 71312020
Amended by Ord. 2021-_00.4 §3 on 512712021
Exhibit G to Ordinance 2025-005
Amended by Ord. 2022-014 §3 on 4/4/2023
Amended by Ord. 2024-008 §9 on 11712025
Amended by Ord. 2025-002 §15 on 312812025
Amended b� Ord 2025-005 §7 on 5/21/2025
18.66.050 Commercial -Rural 'TeCR District
The Terrebonne Commercial -Rural District allows a mix of commercial and industrial uses common
to a farming community.
A. Permitted Uses. The following uses and their accessory uses are permitted outright and do
not require site plan review under DCC 18.124:
1. A single -unit dwelling on a lot or parcel existing on June 4, 1997.
2. A manufactured dwelling on a lot or parcel existing on June 4, 1997, subject to DCC
18.116.070.
3. Type 1 Home Occupation, subject to DCC 18.116.280.
4. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards of DCC 18.66.070 and 18.116.230.
5. Class III road or street project.
6. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18. 120.050.
7. Residential home on a lot or parcel existing on June 4, 1997.
8. Te�orar-V-Hardsh DweUin ssubiectto JDCC 18 116.000.
HISTORY
Adopted by Ord. 97-003 §2 on 6/4/1997
Amended by Ord. 2001=016 §2 on 312812001
Amended by Ord. 20.01-039 §7 on 1211212001
Amended by Ord. 2004-002 §16 on 4/28/2004
Amended by Ord. 2015-004 §4 on 412212015
Amended by Ord. 2016-0.15. §5 on 71112016
Amended by Ord. 202.0-001 §7 on 412112020
Amended by Ord. 2021--004 §3 on 5/27/2021
Amended by Ord. 202,1-008 §9 on 11712025
Amended by Ord. 2025-002 §15 on 3/28/2025
Amended_ yOrd.2025-005-07on5/2_1/2025
Exhibit G to Ordinance 2025-005
Exhibit H to Ordinance 2025-005
18.67.010_Purpose
18.67.020 Residential Tom. District
18.67.030 Residential-5 Acre Minimum TuR5 District
18.67.040 Commercial TuC District
18.67.050 Research And_Deve_t�ent (Tub District
18.67.060 IndustriatjTu�District
18.67.070 Flood Plain�TuFP�District
18.67.080 Standards For Alt Districts
18.67.090 Right -Of -Way Development Standards.
18.67.020 Residential RUM ®'strict
The Tumato Residential (TuR) District allows a mixture of housing types and densities suited to the
Level of available water and sewer facilities. The purpose of this district is to allow new residential
development that is compatible with the rural character of the area.
A. Permitted Uses. The following uses and their accessory uses are permitted outright and do
not require site plan review under DCC 18.124.
1. A single -unit dwelling, or a manufactured dwelling subject to DCC 18.116.070.
2. A duplex.
3. Type 1 Home Occupation, subject to DCC 18.116.280.
4. Agricultural uses as defined in DCC Title 18, involving:
a. Keeping of cows, horses, goats, sheep or similar farm animals, provided that
the total number of such animals over the age of six months is limited to the
Lot area divided by 20,000 square feet.
b. Keeping of chickens, fowl, rabbits or similar farm animals, provided that the
total number of such animals over the age of six months does not exceed
one for each 500 square feet of lot area
5. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards of DCC 18.67.080 and 18.116.230.
6. Class III road or street project.
7. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
8. Residential home.
9. Temporary[._Hardsh_Dwelling,_subectto_DCC_1.8.1.1.6.090.
HISTORY
Adopted by Ord. 97-033 §2 on 6/25/1997
Amended by Ord. 97-063 §3 on 1111211997
Amended by Ord. 2001- 116 §2 on 312812001
Amended by Ord. 2001--039 §8 on 1211212001
Amended by Ord. 2004-002 §17 on 412812004
Amended by Ord. 2020-001 §8 on 412112020
Amended by Ord. 2020-010 §4 on 7/3/2020
Amended by Ord. 2 221- 113 §8 on 41512022
Amended by Ord. 2024-008 §10 on 11712025
Amended by Ord. 2025-002 §16 on 312812025
Amended by Ord. 2025-005 §8 on 512112025
18a67.030.Residentia_t-5 Acre Minimgm—(TuR55� District
The purpose of the Tumalo Residential-5 Acre Minimum District is to retain large rural residential
Lots or parcels.
A. Permitted Uses. The following uses and their accessory uses are permitted outright and do
not require site plan review under DCC 18.124.
1. A single -unit dwelling or a manufactured dwelling subject to DCC 18.116.070.
2. Type 1 Home Occupation, subject to DCC 18.116.2080.
3. Agricultural uses as defined in DCC 18.04, involving:
a. Keeping of cows, horses, goats, sheep or similar farm animals, provided that
the total numbers of such animals over the age of six months is limited to lot
area divided by 20,000 square feet.
b. Keeping of chickens, fowl, rabbits or similar farm animals over the age of six
months, provided that the total numbers of such animals does not exceed
one for each 500 square feet of lot area.
4. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards of DCC 18.67.080 and 18.116.230.
5. Class III road or street project.
6. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
7. Residential home.
8. Tem orar Hardship Dwellin-g ubjectto DCC 18.116.090.
Exhibit H to Ordinance 2025-005
HISTORY
Adopted by Ord. 97-033 §2 on 6/25/1997
Amended by Ord. 97-063 §3 on 1111211997
Amended by Ord. 2000-033 §11 on 121612000
Amended by Ord. 2001-016 §2 on 3/28/2001
Amended by Ord. 2001-039. §8 on 1211212001
Amended by Ord. 2004=002 §18 on 412812004
Amended by Ord. 2020-001 §8 on 412112020
Amended by Ord. 2_020 010 §4 on 7/3/2020
Amended by Ord. 2024-008 §10 on 11712025
Amended by Ord. 2025-002. §16 on 3/28/2025
Amended -by Ord. 2025-005 §8 on 512112025
18.67.040 Comrnercia�Tu District
The Tumalo Commercial District is intended to allow a range of limited commercial and industrial
uses to serve the community and surrounding area.
A. Permitted Uses. The following uses and their accessory uses are permitted outright and do
not require site plan review under DCC 18.124.
1. A single -unit dwelling or duplex.
2. A manufactured dwelling subject to DCC 18.116.070.
3. Type 1 Home Occupation, subject to DCC 18.116.280.
4. Class I and II road or street project subject to approval as part of a land partition,
subdivision or subject to the standards of DCC 18.67.060 and 18.116.230.
5. Class III road or street project.
6. Operation, maintenance, and piping of existing irrigation systems operated by an
Irrigation District except as provided in DCC 18.120.050.
7. Residential home.
8. Temgorar Hards.h Dwetlin subject to DCC 18.116.09 .
HISTORY
Adopted by Ord. 97-033 §2 on 6/25/1997
Amended by Ord. 97-063 §3 on 1111211997
Amended by Ord. 200003 §11 on 121612000
Amended by Ord. 200.1-016 §2 on 312812001
Amended by Ord. 2001-039 §8 on 1211212001
Amended by Ord. 2004-002 §19 on 412812004
Amended by Ord. 2004-013 §I on 912112004
Amended by Ord. 2015_-004 §5 on 412212015
Exhibit H to Ordinance 2025-005
Amended by Ord. 2016-015 §& on 71112016
Amended by Ord. 2020-001 §8 on 412112020
Amended by Ord. 2020-010 §4 on 71312020
Amended by Ord. 2021-004 §4 on 512712021
Amended by Ord. 2021-013 §8 on 41512022
Amended by Ord. 2022-014 §4 on 41412023
Amended by Ord. 2024-008 §10 on 11712025
Amended by Ord. 202.5=002 §16 on 312812025
Amended by Ord. 2025-005 §8 on 512112025
Exhibit H to Ordinance 2025-005
Exhibit I to Ordinance 2025-005
18.74.010 Purpose
_1..8.74.020 Uses_Perm- d• Deschutes )unction And Deschutes River Woods Store
18.74.025 Uses Permitted; Springy River
18.74.027 Uses Permitted Pine Forest And Rolland
18.74_030 Development Standards
18.74.050 Maps.
18.74.020 Uses Per rrritted Deschutes junction And Deschutes River ti o s Store
A. Uses Permitted Outright. The following uses and their accessory uses are permitted outright
and do not require site plan review under DCC 18.124:
1. A single -unit dwelling.
2. A manufactured home subject to DCC 18.1 16. 070.
3. A duplex
4. Type 1 Home Occupation, subject to DCC 18. 1 16. 280.
5. Agricultural uses.
6. Class I and II road or street project subject to approval as part of a land partition or
subdivision, or subject to the standards and criteria established in DCC 18.116.230.
7. Class III road or street project.
8. A lawfully established use existing as of 11 /05/02, the date this chapter was
adopted, not otherwise permitted by this chapter.
9. Residential home.
10. Temporar _Hardship Dwelling subiect to. DCC 18.116.080.
HISTORY
Adopted by Ord. _2002-019. §2 on 81712002
Amended by Ord. 20044 002 §20 on 412812004
Amended by Ord. 2008- 008.§1 on 311812008
Amended by Ord. 201_5-004. §7 on 412212015
Amended by Ord. 2016-095 §7on 71112016
Amended by Ord. 20207001 §9 on 412112020
Amended by Ord. 2020=010 §5 on 71312020
Amended by Ord. 20211-013 §9 on 41512022
Amended by Ord. 2022-014 §5 on 41412023
Amended by Ord. 2024-008 §11 on 11712025
Amended by Ord. 2025-002 §17on 312812025
Amended by Ord 2025-005 § 9 On.512112025
Exhibit I to Ordinance 2025-005
Exhibit J to Ordinance 2025-005
CHAPTER 18.108 URBAN UNINCORPORATED COMMUNITYZONE-SUNRIVER
18.108.010 Purpose
18.108.020 Standards For All Districts
18.108.030 Single Unit Residential: RS District
18.108.040 Multi 1p e Unit Residential: RM District
18.108.050 Commercial; C District
18.108.055 Town Center: TC District
18.108.060 Resort; R District
18.108.070 Resort Marina; RA District
18.108.080 Resort Golf Course; RG District
18.108.090_ Resort Equestrian: RE District
18 108. 000 Resort Nature Center; RN District
18.108.110 Business Park _BP District
18 108.120 Community General CG District
18.108.1.30 CommunityRecreation; CR Distri t
18_108.140 Community. Limited CL. District
18.108.150 Communit Neighborhood; CN District
18.108.160 Airport; A District
18.108..170 Utility; U District
18.108.175 Utility: U DistricUl-imited Use Combining District
18.108.180 Forest F,District
18.108.190 Flood Plain; FP Combinin, District
18.108.030 Single LVnit Residential _RS_®istrict
A. Uses Permitted Outright. The following uses and their accessory uses are permitted
outright:
1. Single -unit dwelling.
2. Recreational path.
3. Residential home.
4. Temp-oraivHardship Dwellin sub ect to DCC 18 116.090.
HISTORY
Repealed & Reenacted by Ord. 97-078 §2 on 1213111997
Amended by Ord. 98-035 §2 on 6/10/1998
Amended by Ord. 2004-013 §11 on 912112004
Amended by Ord. 2020-001 §12 on 412112020
Amended by Ord. 2024-008 §13 on 11712025
Amended by Ord. 2025-002 §26 on 312.8120.25
Amended by Ord 2025-005 §10 on 5/2-1/20-25
18.108.110 Business Park; BP District
A. Uses Permitted Outright. The following uses and their accessory uses are permitted
outright, subject to the applicable provisions of DCC 18.116 and DCC 18.124:
1. Residential uses existing as of March 31, 1997.
2. Administrative, educational and other related facilities in conjunction with a use
permitted outright.
3. Library.
4. Recreational path.
5. Post office.
6. Religious institutions or assemblies.
7. Child care facilities, nurseries, and/or preschools.
8. A building or buildings each not exceeding 8,000 square feet of floor area including
any combination of:
Retail/rental store, office and service establishment, including but not limited to the
following:
a. Automobile, motorcycle, boat, recreational vehicle, trailer or truck sales,
rental, repair or maintenance business, including tire stores and parts
stores.
b. Agricultural equipment and supplies.
c. Car wash.
d. Contractor's office, including but not limited to, building, electrical,
plumbing, heating and air conditioning, painter, etc.
e. Construction equipment sales, rental, and/or service.
f. Exterminator services.
g. Golf cart sales and service.
h. Lumberyard, home improvement or building materials store.
i. Housekeeping and janitorial service.
j. Dry cleaner and/or self-service laundry facility.
k. Marine/boat sales and service.
L. Restaurant, bar and cocktail lounge including entertainment.
Exhibit 1 to Ordinance 2025-005
m. Marijuana wholesaling, office only. There shall be no storage of marijuana
items or products at the same location.
9. A building or buildings each not exceeding 20,000 square feet of floor area including
any combination of: ,
a. Scientific research or experimental development of materials, methods or
products, including engineering and laboratory research.
b. Light manufacturing, assembly, fabricating or packaging of products from
previously prepared materials, including but not limited to cloth, paper,
Leather, precious or semi-precious metals or stones, etc.
c. Manufacture of food products, pharmaceuticals and the like, but not
including the production of fish or meat products, or the rendering of fats
and oils.
d. Warehouse and distribution uses in a building or buildings each less than
10,000 square feet of floor area.
10. Employee housing structures.
11. Temporary Hardship Dwellin subject to DCC 18.116.090.
HISTORY
Repealed & Reenacted by Ord. 97=078 §2 on 1213111997
Amended by Ord. 2012-002 §1 on 212712012
Amended by Ord. 20.15-004 §9 on 412212015
Amended by Ord. 2016-015 §9 on 7/1/2016
Amended by Ord. 2019-008 §1 on 3/6/2019
Amended by Ord. 2020-004 §1 on 211912020
Amended by Ord. 2020-001 §12 on 412112020
Amended by Ord. 2021-004 §6 on 512712021
Amended by Ord. 2021-013 §12 on 41512022
Amended by Ord. 2025-002 §26 on 312812025
Amended_Ord.2025-005 §10 on_5/21/2025
Exhibit J to Ordinance 2025-005
Exhibit K to Ordinance 2025-005
18_110.010 Pose
18.110.020 Seventh Mountain/Widgi Creek And. Black Butte Ranch Resort Districts.
18.110.030_Wid i Q r e ek Residential District
18.110.040 Black Butte Ranch Surface Minin /Limted.Use Combining. District
18.1 10.050 Black Butte Ra.nch-Utitity/Limited Use Combinin. _District
18.110.060 Development Standards,
18.11®.02® Seventh Mountain/Wig Creek And Black Butte Ranch Resort Districts
A. Uses permitted outright. The following uses and their accessory uses are permitted subject
to the applicable provisions of DCC 18.110.050:
1. A single -unit dwelling.
2. Residential home.
3. Timeshare units existing as of January 1, 1984 at Black Butte Ranch.
4. Timeshare units at the Inn of the Seventh Mountain.
5. The following resort recreational facilities: Recreational path, picnic and barbecue
7 rno park ninyarni inri anri snort courts for basketball, vollevball, and similar
small-scale recreation activities.
6. Livestock and horse grazing on common area in Black Butte Ranch.
7. Police or security facility.
8. Tim—orar Hardship ®wetling,suWectto DC�18.116�90_
HISTORY
Adopted by Ord. 2001-048 §2 on 1211012001
Amended by Ord. 2014-009 §1 on 81612014
Amended by Ord. 20.14--025 §1 on 911512014
Amended by Ord. 2020-001 §13 on 412112020
Amended by Ord. 2024_-008 §14 on 1/7/2025
Amended by Ord. 2025-002 §27on 3/28/2025
Amendedby_ rd. 2025-005 §11 on 512112025
The following uses and their accessory uses are permitted subject to the applicable provisions of
DCC 18.110.060:
A. A single -unit dwelling.
B. Residential home.
C. Residential facility.
D. Timeshare units.
E. Temporar HardshiP Dwellin�ec W DCC 18.116.090.
HISTORY
Adopted by Ord. 2001-048 §2 on 12/10/2001
Amended by Ord. 2025-002 §27 on 3/28/2025
Amended by Ord. 2025-005 §11 on 5/21/2025
Exhibit K to Ordinance 2025-005
Exhibit Lto Ordinance 2025-005
18.116. 990 _a.....l Dwetling Tem o� rary Hardship
Dwetling
A. As used in. this section "hardship" means a medical hardship or hardship for the care of an
aged or infirmed person or persons experienced bv_the existing resident or relative.
B. As used in this section, "relative" means arandparent,_ste - randparent, grandchild, step--
1 1 I;J i;I arent step=parent child step -child, brother, sister. sibling, step -sibling, either
blood 0r.legal relationship, niece, nephew, uncle, aunt, or first cousin.
C. , A temporary use permit for
the term of the.. hardship for one of the followin>7 hardship dwelling types maybe granted on
a lot or parcel in.addition teconjunction with_anan existing pprimary dwelling unit;.
1. One manufactured dwelling of any class;.
2. or -cone recreational vehicle -subject to —the criteria under subsection (F); or
3. The temporary residential use of an existin
building subject to the. QRQWing
a. .. An existing dweRl g building e is onthat was constructed at least two years
prior to the date of application for the subjectt temporal residential use
permit For the purposes of this section, "constructed" means the Buildin
niviSion annroved the final inspection at least two _vears prior to the date, of
application -for the subject_temporary use permit,_Any modifications to the
existing___b..uilding_forthe_hardshiUi _pdwen _must be contained within the
existing buildin-floor_area.
a b.This type of hardship dweltftjs not permitted on properties within the
Multiple Use A riculturat (MUA-1 or�._l_Residential (RR-10) zones.r�y
be granted when a rnedaeai condition exists. In the Exeitisave Farm Use and
Forest zones only, an existing building may be used as a ternporary U'vveRing.
For the purposes of this section, ,<
existing" means the building was in
A7D. The hardship dwelling must use thesame onsite septic disposals sv tem used by the
existin
rim ary dwellin unit, brovided that the existin onsite septic s st m is adeauate�t
accommodate the hardshi wellin . if the hardship dwelling will be connected to a
community sewer system_this requirement does not applycondition rndst be either one of the property owners or a reiative of one of the property
E.. Prior to initiatin the__use the proper _owner must
_obtain all necessary -permits from the
Deschutes County Buildingand Onsite Wastewater -For the purposes of this
F. A recreation vehicle hardship dwelling must comply with all of the following requirements:
1. The recreational vehicle must have a sink and toilet;
2. The recreational vehicle must comply with all setbacks of the underlying zone(s�;
3. —The vehicle must be fully licensed;
4. The recreational vehicle must be ready for highway use. on its wheels or jacking
s ss�r tem, and must bties and
security devices:
5. A recreational vehicle hardship_dwettin located in a special flood hazard area must
comply- with with 18.96: and
6. Permanent attached additions are prohibited.
G_._ One temporar use permit for a hardshi�dwellin is�ermitteovided there is no nest
house recreationalvehicte as a.rsntal dwellin or accessory dwelling unit on the sub'ect
lo�Aeoehclpdunder DCC 18.116.095(C� is allowed in
addition to a hardship dwelling_
written statement, whieh shalt accompany the perm TAU --application-.
EH_The hardshi.p shell be verified bya state-licensed_medical practitioners written
statement.
DI_The temporary use permit shall be reviewed afrnu-a�everytwo_yea_rs to -ensure ongoingfor
compliance with the terms of DCC 18.116.090.
J,Within three months of he end of the har_dsh___ pone of the_followin must occur:
1. The manufactured dwelling shall be removed demolished,_o_r converted to an
allowed use in the underlying_zone(sj;
2. ottThe recreational vehicle shall be vacated; and disconnected from any electric,
water orseptic/sewer facility connection.or
4-3. for whieh a perrnit has been isstied not Later than 90 dd-ays IoRowiftg the date the
Exeiusmve Farm Use and Forest zones For an existing building used asa
hardship dwellin s�the_building must-witt be converted to a permitted rerr=
_..,Luse in the underpin zone_
iffledical con
Exhibit L to Ordinance 2025-005
J&7@
Wit MEMA
HISTORY
Adopted by Ord. PL-15 on 111111979
Amended by Ord. 89-004 §5 on 3/24/1989
Amended by Ord. 91-005 §45 on 3/4/1991
Amended by Ord. 20_08-022 §2 on 11/1012008
Amended by Ord. 20.12-007§5 on 51212012
Amended by Ord. 2017-002 §1 on 212712017
Amended by Ord. 2023-001 §16 on 513012023
Amended by Ord 2025-002 §30 on 312812025
Amended by Ord. 2025-004 §2 on 51712025
Amended_by,Ord. 2025-005 §12 on 512112025
Exhibit L to Ordinance 2025-005
Exhibit M to Ordinance 2025-005
FINDINGS
HARDSHIP DWELLING TEXT AMENDMENTS
I. APPLICABLE CRITERIA:
Title 22, Deschutes County Development Procedures Ordinance
11. BACKGROUND:
This is a legislative text amendment to Deschutes County Code (DCC), Title 18, County Zoning. The
primary purpose of the amendment is to conform local requirements to state law and provide
consistency for the review of hardship dwellings across multiple county zones. Notable changes
include:
• Reorganized content for readability;
• Amended ni itrlatarl rPfPrPnrPt'
• Clarified hardship dwelling can be used for the "aged" as well as the "infirmed";
• Clarified "existing building" use and definition for the purpose of the section;
• Clarified hardship dwelling can be the only second dwelling on the property;
• Amended renewal requirement from every one year to two years;
• Listed the use in all permissible Title 18 zones for readability.
Since 1979, Deschutes County has allowed property owners to obtain a temporary use permit for a
secondary dwelling on a property, with the intent the dwelling would be used for the care of a
property owner or relative of the property owner with a medical condition. This would allow for the
person with the medical condition to maintain independence and continue to live on a rural
property while also receiving necessary medical attention.
The current requirements for hardship dwellings were drafted in 2008. Since that time, the state
has undergone rulemaking in farm and forest (resource) zones, providing more detailed guidance
on the eligibility and requirements for establishing the use.
OAR 660-004-0040(8)(f) provides limited guidance on hardship dwellings in rural residential
exception areas, only noting that the dwelling type for such use is limited to Recreational Vehicle
(RV)s and manufactured dwellings. To staff's understanding there is no other state guidance for
regulation of temporary hardship dwellings in zones that allow for a single -unit dwelling as a
permitted use and are outside of farm, forest, and rural residential exception areas.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
AZA (541) 388-6575 o@d@deschutes .org wwdeschutes.org/cd
The purpose of this proposal is to amend the code for greater consistency with state rules and
statutes and to establish a consistent review process for hardship dwelling applications across all
County zones in which the use is permitted.
111. STATE REQUIREMENTS AND LOCAL INTERPRETATIONS
As noted above, the state of Oregon regulates hardship dwellings in both Oregon Administrative
Rule (OAR) and in Oregon Revised Statute (ORS). These regulations only apply to hardship dwellings
in resource zones - the Exclusive Farm Use Zone (DCC 18.16) and Forest Zones (18.32 and 18.40).
ORS 215 283(2)(L) - Uses Permitted in Exclusive Farm Use Zones and ORS 215.755(2) - Other
Forestland Dwellings require:
• The use is subject to ORS 215.296 (Farms Impacts Test) for the EFU zone.
• One manufactured dwelling, recreational vehicle, or temporary residential use of an existing
building, in conjunction with the existing dwelling as a temporary use for the term of a hardship
suffered by the existing resident or a relative of the resident.
• Within three months of the end of the hardship, the manufactured dwelling or recreational vehicle
shall be removed or demolished or in the case of the existing building, the building shall be
removed or returned to on allowed nonresidential use.
• The governing body or designee shall provide for periodic review of the hardship claimed under
this paragraph.
• A temporary residence is not eligible for replacement under subsection (1)(p) of this section.
OAR 660-006-0025(4)(t) - Forest Lands - Uses Authorized in Forest Zones and OAR 660-033-0130(10)
-Agricultural Lands - Minimum Standards for Permitted and Conditional Uses require:
• As used in this section, "hardship" means a medical hardship or hardship for the care of an aged
or infirm person or persons experienced by the existing resident or relative as defined in ORS
chapter 215.
o ORS 215 definition for relative: a relative is defined as a grandparent, step -grandparent,
grandchild, parent, step-parent, child, step -child, brother, sister, sibling, step -sibling, either
blood or legal relationship, niece, nephew, uncle, aunt or first cousin.
• The temporary residence may include a manufactured dwelling, or recreational vehicle, or the
temporary residential use of an existing building.
• A manufactured dwelling shall use the same subsurface sewage disposal system used by the
existing dwelling, if that disposal system is adequate to accommodate the additional dwelling. If
the manufactured home will use a public sanitary sewer system, such condition will not be
required.
• Governing bodies shall review the permit authorizing such manufactured homes every two years.
• Within three months of the end of the hardship, the manufactured dwelling or recreational vehicle
shall be removed or demolished or, in the case of an existing building, the building shall be
removed, demolished or returned to an allowed nonresidential use.
• Department of Environmental Quality review and removal requirements also apply.
247-25-000078-TA Findings Page 2 of 8
The state provides limited guidance on regulations pertaining to hardship dwellings on non -
resource lands. The requirement below, which was presented to the Planning Commission during
the deliberation process, applies to rural residential exception areas (MUA-10 and RR-10 zones) but
does not provide guidance for the use in other nonresource zones, such as in unincorporated
communities.
OAR 660-004-0040(8)(f) - Application of Goal 14 to Rural Residential Areas requires:
Except as provided in subsection (e) of this section or section (10) of this rule, a local government shall not
allow more than one permanent single-family dwelling to be placed on a lot or parcel in a rural residential
area. Where a medical hardship creates a need for a second household to reside temporarily on a lot or
parcel where one dwelling already exists, a local government may authorize the temporary placement of
a manufactured dwelling or recreational vehicle.
In approaching the amendments, staff has integrated state requirements where possible, for all
zones in Title 18 in which a hardship dwelling is permitted, to ensure a consistent and clear process
for property owners and county staff.
Deschutes County can provide local interpretation of requirements that are not expressly
addressed in OAR or ORS. In coordination with the County's Building, Code Enforcement,
Coordinated Services, and Onsite Wastewater Divisions, staff identified several policy choices for
consideration.
Use of Existing Building as a Temporary Hardship Dwelling
Property owners can currently utilize an Rv or i �a^r�ufa^ttur cu dvvciiing for a tempos ary hardship
dwelling in all zones. In farm and forest zones, existing buildings (sheds, accessory structures, barns)
are also permitted to be converted for use as a temporary hardship dwelling, per the OAR and ORS.
The proposed text amendment package proposes to allow the use of existing buildings in the
following zones, which currently allow for single -unit dwellings:
• 18.65.020, 021, 022: Rural Service Center Unincorporated Community Zones
• 18.66.020, 030, 040, 050: Terrebonne Rural Community Zones
• 18.67.020, 030, 040: Tumalo Rural Community Zones
• 18.74.020: Rural Commercial Zone
• 18.108.030, 110: Sunriver Unincorporated Community Zones
• 18.110.020, 030: Resort Community Zones
During Planning Commission deliberations, staff discovered the restriction in OAR 660-004-040
noted above and amended the original proposal to exclude the use of existing buildings as hardship
dwellings in the RR-10 and MUA-10 zones. To staff's understanding, there are no state restrictions
on the zones listed above.
Existing Building Definition
State regulations do not define "existing buildings" for temporary hardship dwellings. Currently, the
code definition is a building "in existence on or before March 29, 2017". To provide additional
flexibility, while still seeking to avoid a scenario in which a new building is constructed for temporary
247-25-000078-TA Findings Page 3 of 8
use, the proposed text amendments alter the definition to be a rolling eligibility date of two years
from the date of final inspection of a building to the submittal date of the temporary use permit for
a hardship dwelling. If the application is submitted prior to the two-year date, it does not constitute
an "existing building."
Modification of Existing Buildings
The proposed text amendments would add a restriction on the modification of existing buildings to
be used as temporary hardship dwellings. The intent of the requirement is to limit modifications to
minor improvements in the existing building floor area (such as the installation of kitchen facilities)
to ensure the use can be converted back to a nonresidential use if the temporary hardship dwelling
is no longer needed. The limitation is drafted as follows: "Any modifications to the existing building for
the hardship dwelling must be contained within the existing building floor area."
RV Component Requirements
Code Enforcement has processed several cases involving non -operational RVs that are unfit for
habitation. The text amendments preserve existing requirements related to the necessary
components and siting of an RV and also clarify that an RV must have a sink and a toilet. Although
more restrictive than state law, CDD staff are supportive of carrying forward these requirements to
ensure RVs are safe for occupants when used as a temporary hardship dwelling. The proposed text
amendments include the following component language:
A recreational vehicle hardship dwelling must comply with all of the following requirements:
1. The recreational vehicle must have a sink and toilet;
2. The recreational vehicle must comply with all setbacks of the underlying zone(s);
3. The recreational vehicle must be fully licensed,
4. The recreational vehicle must be ready for highway use, on its wheels or jacking system, and
must be attached to the site only by quick disconnect type utilities and security devices;
5. A recreational vehicle hardship dwelling located in a special flood hazard area must comply
with DCC 18.96.
6. Permanently attached additions are prohibited.
The Planning Commission supported the proposed text amendment package in its entirety, with
the minor amendment to exclude the use of existing buildings as a hardship dwelling type in the
MUM 0 and RR-10 zones. Staff requests the Board evaluate these policy options during the hearing
process.
IV. BASIC FINDINGS:
The Planning Division determined minor changes were necessary to clarify existing standards and
in various sections of the Deschutes County Code (DCC). Staff initiated the proposed changes and
notified the Oregon Department of Land Conservation and Development on February 6, 2025 (File
no. 247-24-000078-TA). As demonstrated in the findings below, the amendments remain consistent
with the Deschutes County Code, the Deschutes County Comprehensive Plan, and the Statewide
Planning Goals.
247-25-000078-TA Findings Page 4 of 8
V. FINDINGS:
CHAPTER 22.12, LEGISLATIVE PROCEDURES
Section 22.12.010.
Hearing Required
No legislative change shall be adopted without review by the Planning Commission and a
public hearing before the Board of County Commissioners. Public hearings before the
Planning Commission shall be set at the discretion of the Planning Director, unless
otherwise required by state law.
FINDING: This criterion will be met because a public hearing was held before the Deschutes
County Planning Commission (Commission) on March 13, 2025, and a public hearing was held
before the Board of County Commissioners (Board) on April 23, 2025.
Section 22.12.020, Notice
Notice
A. Published Notice
1. Notice of a legislative change shall be published in a newspaper of general
circulation in the county at least 10 days prior to each public hearing.
2. The notice shal► state the ti►►►e and place of the hearing and contain a
statement describing the general subject matter of the ordinance under
consideration.
FINDING: This criterion will be met as notice will be published in The Bulletin newspaper at least 10
days prior to each public hearing.
B. Posted Notice. Notice shall be posted at the discretion of the Planning Director and
where necessary to comply with ORS 203.045.
FINDING: Posted notice was determined by the Planning Director not to be necessary.
C. Individual notice. Individual notice to property owners, as defined in DCC
22.08.010(A), shall be provided at the discretion of the Planning Director, except as
required by ORS 215.503.
FINDING: The proposed amendments are legislative and do not apply to any specific property.
Therefore, individual notice is not required.
D. Media notice. Copies of the notice of hearing shall be transmitted to other
newspapers published in Deschutes County.
247-25-000078-TA Findings Page 5 of 8
FINDING: Notice was provided to the County public information official for wider media
distribution. This criterion has been met.
Section 22 12 030 Initiation of Legislative Changes.
A legislative change may be initiated by application of individuals upon payment of
required fees as well as by the Board of County Commissioners.
FINDING: The application was initiated by the Deschutes County Planning Division at the direction
of the Board and has received a fee waiver. This criterion has been met.
Section 22.12.040. Hearings Body
A. The following shall serve as hearings or review body for legislative changes in this
order.
1. The Planning Commission.
2. The Board of County Commissioners.
B. Any legislative change initiated by the Board of County Commissioners shall be
reviewed by the Planning Commission prior to action being taken by the Board of
Commissioners.
FINDING: This criterion is met as the Commission held a public hearing on March 13, 2025. The
Board held a public hearing on April 23, 2025.
Section 22.12.050 Final Decision
All legislative changes shall be adopted by ordinance
FINDING: The proposed legislative changes included in file no. 247-25-000078-TA will be
implemented by ordinances upon approval and adoption by the Board.
OAR 660-015, STATEWIDE PLANNING GOALS AND GUIDELINES
Goal 1: Citizen Involvement:
FINDING: The amendments do not propose to change the structure of the County's citizen
involvement program. Notice of the proposed amendments was provided to the Bulletin for the
Board public hearing.
Goal 2: Land Use Planning:
FINDING: The purpose of the amendment is to integrate requirements from Oregon Administrative
Rule and Oregon Revised Statutes. The proposal has a factual base and is consistent with the intent
of the Comprehensive Plan and zoning districts. This goal is met.
Goal 3: Agricultural Lands:
247-25-000078-TA Findings Page 6 of 8
FINDING: The proposed amendments integrate requirements from Oregon Administrative Rule
and Oregon Revised Statute for hardship dwellings on agricultural lands. Additionally, the rules
provide more express guidance for hardship dwellings on non-agricultural lands to avoid conflicts
to farm operations on neighboring properties. This goal is met.
Goal 4: Forest Lands:
FINDING: The proposed amendments integrate requirements from Oregon Administrative Rule
and Oregon Revised Statute for hardship dwellings on forest lands. Additionally, the rules provide
more express guidance for hardship dwellings on non -forest lands to avoid conflicts to forest
operations on neighboring properties. This goal is met.
Goal 5: Open Spaces Scenic and Historic Areas and Natural Resources:
FINDING: The proposed amendments do not include changes to the County's Comprehensive Plan
policies or implementing regulations for compliance with Goal 5. This goal does not apply.
Goal 6: Air Water and Land Resources Quality:
FINDING: The proposed amendments do not include changes to the County's Comprehensive Plan
policies or implementing regulations for compliance with Goal 6. This goal does not apply.
Goal 7• Areas Sub*ect to Natural Disasters and Hazards:
FINDING: The proposed amendments do not include changes to the County's Comprehensive Plan
policies or implementing regulations for compliance with Goal 7. This goal does not apply.
Goal 8: Recreational weeds.
FINDING: The proposed amendments do not include changes to the County's Comprehensive Plan
policies or implementing regulations for compliance with Goal 8. This goal does not apply.
Goal 9: Economic Development:
FINDING The proposed amendments do not include changes to the Countys Comprehensive Plan
policies or implementing regulations for compliance with Goal 9. This goal does not apply.
Goal 10: Housing:
FINDING: The proposed amendments provide more flexibility for hardship dwellings, as allowed by
state law. The amendments will provide clarity on a housing type for vulnerable populations in the
rural county. This goal is met.
Goal 11: Public Facilities and Services:
FINDING: The proposed amendments do not include changes to the County's Comprehensive Plan
policies or implementing regulations for compliance with Goal 11. This goal does not apply.
Goal 12• Transportation:
FINDING: The proposed amendments do not include changes to the County's Comprehensive Plan
policies or implementing regulations for compliance with Goal 12. This goal does not apply.
Goal 13: Energy Conservation:
247-25-000078-TA Findings Page 7 of 8
FINDING: The proposed amendments do not include changes to the County's Comprehensive Plan
policies or implementing regulations for compliance with Goal 13. This goal does not apply.
Goal 14: Urbanization:
FINDING: The proposed amendments integrate requirements from Oregon Administrative Rule
and Oregon Revised Statute for hardship dwellings. The use is already permitted in the underlying
zoning districts, there is no alteration to allowance of development density on rural lands. This goal
does not apply.
Goals 15 through 19
FINDING: These goals are not applicable to the proposed plan and text amendments because the
County does not contain these types of lands.
2011 DESCHUTES COUNTY COMPREHENSIVE PLAN
Chapter 3 Rural Growth Management Section 3.3. Rural Housing Policies
Policy 3.3.5 Maintain the rural character of the County while ensuring a diversity of
housing opportunities, including initiating discussions to amend State Statute and/or
Oregon Administrative Rules to permit accessory dwelling units in Exclusive Farm Use,
Forest and Rural Residential Zones.
FINDING: The intent of the text amendment is to amend regulations for temporary hardship
dwellings to be consistent with state law and administrative rule for resource zones. The
amendments will also provide a loisictnirit -,-ncc fnr rom ilntinn f hrrIchin rh illinac in hnth
Ni v., vii5-- oa( .b nonresource and resource zones. These requirements will ensure development continues to
comply with all state rules and will maintain the rural character of the County through intentional
placement of temporary housing associated with a hardship.
VI. CONCLUSION:
Based on the information provided herein, the staff recommends the Board of County
Commissioners approve the proposed text amendments as drafted.
247-25-000078-TA Findings Page 8 of 8
441\31 E S C0
G2-A
BOARD OF
COMMISSIONERS
MEETING DATE: May 7, 2025
SUBJECT: Public Hearing: Remand of a modification to the Final Master Plan of the
Thornburgh Destination Resort
RECOMMENDED MOTION:
Following the hearing, the Board may choose to:
• Continue the hearing to a date certain;
• Close the oral portion of the hearing and leave the written record open to a date
and time certain;
• Close the hearing and commence deliberations; or
• Close the hearing and schedule deliberations for a date and time to be determined.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of Commissioners (Board) will hold a work session in preparation for a May 7,
2025, public hearing to consider a remand proceeding from the Land Use Board of Appeals
(LUBA) for a land use action review to amend the Final Master Plan (FMP) for the Thornburgh
Destination Resort by amending the Fish and Wildlife Management Plan (2022 FWMP) and
imposing limitations on the scope of development and water use allowed by the Thornburgh
Destination Resort.
Record items can be viewed and downloaded from the following link:
bit.ly/0425ThornburghRemand
BUDGET IMPACTS:
None
ATTENDANCE:
Jacob Ripper, AICP, Principal Planner
14111INIZIM11091 M2711111MAT114.. IT � � E
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Jacob Ripper, AICP, Principal Planner
DATE: May 7, 2025
SUBJECT: Public Hearing: Remand of a Thornburgh Destination Resort Modification,
application 247-22-000678-MC (remand ref. 247-25-000229-A).
On May 7, 2025, the Board of Commissioners (Board) will hold a public hearing to consider
the remanded decision of the Oregon Land Use Board of Appeals (LUBA) regarding an
amendment to the Final Master Plan (FMP) for the Thornburgh Destination Resort by
amending the Fish and Wildlife Management Plan (2022 FWMP) and imposing limitations on
the scope of development and water use allowed by the Thornburgh Destination Resort. The
record associated with this remanded review is located on the oroiect webgaae'. This
hearing is a continuation of an existing application (247-22-000678-MC), with the full record
located on the project webpage2.
I. BACKGROUND
The original application was received by the Planning Division on August 17, 2022. A public
hearing was conducted by a Deschutes County Hearings Officer on October 24, 2022. On
December 19, 2022, the Hearings Officer denied the Applicant's request.
Two appeals of the Hearings Officer's decision were received. The Applicant filed an appeal
on Friday, December 30, 2022 (ref. 247-22-000984-A) and an appeal was filed by A. Gould on
Tuesday, January 3, 2023 (ref. 247-23-000003-A). The Board of County Commissioners
conducted a public hearing on February 1, 2023.
The Board held deliberations on Wednesday, March 29, 2023, and voted 2-1 to approve the
Applicant's request. The Board's final decision was approved and mailed on April 17, 2023.
All decisions and recordings of those meetings are available on the project websites.
1 bit. ly/0425Thornburgh Remand
2https://www.desch utes.org/cd/page/247-22-000678-mc-thornburgh-desti nation -resort -mod ification-
cmpfmpfwmp
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 1
On January 12., 2024, the Land Use Board of Appeals (LUBA) issued their Final Opinion and
Order remanding the County's decision back to the County for further review (ref. LUBA Nos.
2023-038, 2023-039, 2023-041). On May 1, 2024, the Oregon Court of Appeals reversed and
remanded to LUBA for further review on petition of The Confederated Tribes of the Warm
Springs Reservation of Oregon (Tribe). On February 25, 2025, LUBA remanded to the County
again, adding an additional remand topic for the County to address at the local level. On April
7, 2025, the Applicant requested that the County initiate remand proceedings.
II. REMAND TIMELINE
Pursuant to Deschutes County Code (DCC) 22.34.030(C) and state law, the County must issue
a final decision within 120 days from the date the applicant requests to initiate remand
proceedings, and this time period cannot be extended unless the parties enter into
mediation. The Applicant initiated the remand proceedings on April 7, 2025, making the final
County decision due by August 5, 2025.
III. LUBA REMAND
LUBA, in its first Final Opinion and Order, remanded the County decision to address the
follow issues summarized below:
1. Additional findings to explain why the submittal of the 2022 Fish and Wildlife
Management Plan (FWMP) to the Oregon Water Resources Department is sufficient
to satisfy the "no net loss" standard with respect to groundwater sources for fish
H r ti ;+a+ ;+; T—+;„
11uurtuC r�nusuuvii.
On pages 64-65 of the first LUBA remand, LUBA discusses that Appellant Bishop argued that
the 2022 FWMP groundwater rights compliance provisions are inadequate to support a
conclusion that the 2022 FWMP will result in no net loss to fish habitat. On this sub -
assignment of error, LUBA sustained Bishop's assignment of error in part:
We agree with Bishop that the county's findings are inadequate to explain why
submittal to OWRD is sufficient to satisfy the no net loss standard with respect to
groundwater sources for fish habitat mitigation. Indeed, Thornburgh and the county
rely upon OWRD processes to ensure that voluntary cancellation of water rights
consistent with OWRD rules and review processes will result in improved fish habitat.
... The county has failed to explain how simple submittal of an application to OWRD
permits the county to rely on those OWRD processes.
Thornburgh has not pointed to any evidence supporting a conclusion that ground
water right certificate ownership, cessation of pumping, and OWRD submittal is
sufficient to ensure fish mitigation water will be provided as assumed in the 2022
FWMP.
2. That the FWMP was a substantial change with respect to the required economic
analysis and LUBA required further findings addressing DCC 18.113.070(C)(3) and
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 2
(4) and that the County will either need to consider those changes or explain why
that consideration is not required.
LUBA analyzed the question of whether the 2022 FWMP would materially affect the findings
of fact on which the original approval was based and whether the changes resulting from
the 2022 FWMP are not"substantial changes that require a new application addressing those
criteria," in four subsections: (A) Economic Analysis; (B) Open Space; (C) Water Supply,
Consumption, and Conservation; (D) Water System and Wastewater Disposal Plans.
Under economic analysis, considering the proposed change to the number of golf courses,
LUBA agreed with Appellant Lipscomb that the reduction in the number of golf courses is a
substantial change to the resort development that materially affects the facts underlying the
resort's economic analysis that the county relied upon to find that DCC 18.113.070(C) is
satisfied. LUBA found there is an impact to the underlying findings of fact for the CMP
approval - namely that the developed golf courses will provide 125 newly created jobs and
3.9 million dollars in employee compensation (p. 71). LUBA disagreed with the argument that
a general change in rental cost and availability is a "substantial change" (p. 75):
On remand, the county will need to consider whether, with the changes proposed in
the 2022 FWMP, those criteria [DCC 18.113.070(C)(3) and (4)] are satisfied. On
remand, the county will need either to consider changes to employee housing
demands based on the changes in the 2022 FWMP or explain why that consideration
is not required.
i i ion J7 A ,;t4, th rh�r ., nli��� �n .,� I.
wort' uisa^gr eeu vviu 1 the arguments a that a "new apNnca io i means aiii ei i i ciy i levy
CMP/FMP application and deferred to the county's interpretation of DCC 22.36.040. LUBA
ruled (pp. 79-80):
Here, the identified error may be corrected by the county accepting a new economic
analysis that demonstrates that "[t]he destination resort will provide a substantial
financial contribution which positively benefits the local economy throughout the life
of the entire project, considering changes in employment, demands for new or
increased levels of public service, housing for employees and the effects of loss of
resource land" and that "[t]he natural amenities of the site considered together with
the identified developed recreation facilities to be provided with the resort, will
constitute a primary attraction to visitors, based on the economic feasibility analysis."
DCC 18.113.070(C)(3), (4). Accordingly, we conclude that the established error should
result in remand in this case.
3. Whether the 2022 Fish and Wildlife Management Plan violates the Treaty with the
Tribes of Middle Oregon, dated June 25, 1855.
In its 2024 decision, LUBA ruled that the Tribe's argument that the challenged decision
improperly construes applicable law by failing to address whether the 2022 Fish and Wildlife
Management Plan violates the Treaty with the Tribes of Middle Oregon, dated June 25, 1855
(Treaty), was not raised during the local proceeding and was therefore waived. LUBA also
ruled that several other arguments were not adequately raised and were thus waived.
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 3
Petitioners further appeaied tc the Oregon Court of Appeals. The Court of Appeals
remanded to LUBA in its decision, Confederated Tribes of Warm Springs v. Deschutes County,
332 Or App 361, 550 P3d 443 (2024). On judicial review, the Court of Appeals agreed with the
Tribe that the question of whether the 2022 FWMP violates the Treaty was sufficiently raised
and that the County was obligated to make findings addressing it.
Therefore, following remand from the Court of Appeals, LUBA remanded the decision to the
County to address this issue (number 3 above), as well as the other issues it remanded in its
January 12, 2024, decision (numbers 1 and 2 above). The Appellants' other assignments of
error were denied.
Staff notes that the Applicant, in their initiation of remand materials and as of the date of
drafting this report, has not yet provided additional testimony to address the remanded
issue areas summarized above. Staff anticipates additional information may be submitted
prior to or at the public hearing for Board consideration, or potentially during an open record
period, should the Board choose to leave the written record open. Any materials received by
the applicant ahead of the public hearing will be timely incorporated into the official record.
IV. HEARING PROCEDURE
Participation
Per DCC 22.34.030(A), only those persons who were parties to the proceedings before the
County as part of the File Number(s) listed above are entitled to notice and participation in
the remand hearing. Per County hearing procedures, the entirety of the record must be
before the Board and can be found at the project websites listed above.
Pursuant to DCC 22.24.070 the Board may set reasonable time limits on oral testimony. In
the Notice of Public Hearing mailed to all parties with standing, typical testimony time limits
were listed, being:
• Applicant Testimony: 30 Minutes
• Agency Testimony: 10 Minutes
• Public Testimony: 3 Minutes
• Applicant Rebuttal Testimony: 10 Minutes
The Confederated Tribes of Warm Springs requested 30 minutes to speak at the hearing.
The Board has the discretion to modify or eliminate the above suggested standard time limits
if it wishes to do so.
Reopened Record
Per DCC 22.32.040 notes that the scope of the proceeding for an application on remand must
be limited to review of the issues that LUBA requires to be addressed, although the Board
may use its discretion to reopen the record where it seems necessary.
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 4
The applicant requested the record be reopened to address a single remand issue, being the
economic analysis (number 2 above). Thy:, Confederated Tribes of Warm Springs requested
that the record be reopened to address all remand issues. In either case the hearings body
must limit its review to the remanded issues.
Pursuant to Board Order No. 2025-014, signed April 16, 2025, the Board reopened the record
and limited new evidence to be only directed to the economic analysis required pursuant to
DCC 18.113.070 (C)(3) and (4).
V. PUBLIC COMMENT
Staff has received several public comments since the Notice of Public Hearing was mailed.
All comments received as of the date of drafting this memo are uploaded to the record. To
the extent additional comments are received prior to the hearing, staff will enter them into
the record in a timely manner.
VI. NEXT STEPS AND TIMELINE
Following the hearing the Board may choose to:
• Continue the hearing to a date certain;
• Close the oral portion of the hearing and leave the written record open to a date and
time certain;
• Close the hearing and commence deliberations; or
Close
the hearing
d hed 1e .Jn lil h e r-�ti o n s for Udatn Ind ti ee to hn rl ate rmie
• LIU�C the I ICCtI II I� and sl.l Icl.7U lc Uc111JC1 alive �� for a lAalc ai �u �imc w Nc u���.i � i nIn �.
Staff notes that a final County decision on the remand is required within 120 days of the date
the applicant initiates the remand. The applicant initiated the remand on April 7, 2025;
therefore, a final County decision is due no later than August 5, 2025.
Due to the short time period for remand proceedings, if an open record period is requested
and granted, staff recommends a standard open record period of seven days for new written
testimony, seven days for rebuttal, and seven days for final legal argument by the Applicant
only. In addition, the Confederated Tribes requested that the hearing be continued to the
first week of June. If the Board were to grant the continuance, and with the open record
period outlined above, this would put a likely and realistic decision date beyond the 120-day
due date.
Attachment(s):
Attachment A: Final Opinions and Orders
Attachment B: Oregon Court of Appeals Opinion
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 5
,��y-TES COG2�
BOARD OF
COMMISSIONERS
MEETING DATE: May 7, 2025
SUBJECT: Public Hearing on the Community Development Department Draft FY 2025-26
Work Plan
RECOMMENDED MOTION:
Information only.
BACKGROUND AND POLICY IMPLICATIONS:
The purpose of this public hearing is to accept public comments for the Community
Development Department's FY 2025-26 Work Plan
BIrIDGET IMPACTS:
None
ATTENDANCE:
Peter Gutowsky, CDD Director
No. 281 May 1, 2024 361
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
THE CONFEDERATED TRIBES OF THE
WARM SPRINGS RESERVATION OF OREGON,
Central Oregon Landwatch,
Annunziata Gould, and Thomas Bishop,
Petitioners
Cross -Respondents,
V.
DESCHUTES COUNTY,
Respondent,
and
CENTRAL LAND AND CATTLE COMPANY, LLC;
Pinnacle Utilities, LLC; and Kameron Delashmutt,
Respondents
Cross -Petitioners.
Land Use Board of Appeals No. 2023038
Annunziata GOUI_D,
The Confederated Tribes of the Warm Springs Reservation
of Oregon, Paul J. Lipscomb, Thomas Bishop,
and Central Oregon Landwatch,
Petitioners
Cross -Respondents,
V.
DESCHUTES COUNTY,
Respondent,
and
CENTRAL LAND AND CATTLE COMPANY, LLC;
Pinnacle Utilities, LLC; and Kameron Delashmutt,
Respondents
Cross -Petitioners.
Land Use Board of Appeals No. 2023039
CENTRAL OREGON LAND WATCH,
The Confederated Tribes of the Warm Springs Reservation
of Oregon, Annunziata Gould, and Thomas Bishop,
Petitioners
Cross -Respondents,
362 Confederated Tribes of Warm Springs v. Deschutes Cty.
V.
DESCHUTES COUNTY,
Respondent,
and
CENTRAL LAND AND CATTLE COMPANY, LLC;
Pinnacle Utilities, LLC; and Kameron Delashmutt,
Respondents
Cross -Petitioners.
Land Use Board of Appeals No. 2023041;
A183421(Control), A183430, A183431, A183432, A183436,
A183461, A183462
Argued and submitted March 28, 2024.
Josh Newton argued the cause for petitioner -cross -
respondent The Confederated Tribes of the Warm Springs
Reservation of Oregon. Also on the briefs were Ellen Grover
and Best Best & Krieger LLP.
Carol Macbeth argued the cause and filed the brief for
petitioner -cross -respondent Central Oregon Landwatch.
Jennifer M. Bragar argued the cause for petition-
er -cross -respondents Annunziata Gould, Thomas Bishop,
and Paul J. Lipscomb. Also on the opening briefs were Jay
M. Harris and Tomasi Bragar Dubay. Also on the joint
cross -answering brief were Jay M. Harris, Tomasi Bragar
Dubay, and Carol Macbeth.
Ken Katzaroff argued the cause for respondent -cross -pe-
titioners Central Land and Cattle Company, LLC, Pinnacle
Utilities, LLC, and Kameron DeLashmutt. Also on the brief
were Keenan Ordon-Bakalian, Megan Breen, and Schwabe,
Williamson & Wyatt, P.C.
No appearance for respondent Deschutes County.
Jeffrey B. Litwak filed the brief amicus curiae for
Columbia River Gorge Commission.
Marcus M. Shirzad, Garrett Brown, and David J.
Cummings filed the brief amicus curiae for The Confederated
Tribes and Bands of the Yakama Nation, The Confederated
Cite as 332 Or App 361(2024) 363
Tribes of the Umatilla Indian Reservation, and the Nez
Perce Tribe.
Before Tookey, Presiding Judge, Egan, Judge, and
DeVore, Senior Judge.
TOOKEY, P. J.
Reversed and remanded to LUBA on petition of The
Confederated Tribes of the Warm Springs Reservation of
Oregon, for consideration of Tribe's first assignment of error
to LUBA; affirmed on cross -petition; otherwise affirmed.
364 Confederated Tribes of Warm Springs v. Deschutes Cty.
TOOKEY, P. J.
This is a judicial review of an order of the Land Use
Board of Appeals, dated January 12, 2024, upholding in part
and remanding in part an order of the Deschutes County
Board of Commissioners (the board) approving an application
by Central Land and Cattle Company, LLC, Pinnacle Utilities,
LLC, and Kameron DeLashmutt (collectively, Thornburgh)
for an amendment to the Final Master Plan (FMP) for the
Thornburgh Destination Resort relating to mitigation mea-
sures for the development's impacts on fish, which Thornburgh
submitted to meet Deschutes County's "no net loss" standard
set forth in Deschutes County Code (DCC) 18.113.070(D).
Thornburgh seeks to change the FMP by replacing the Fish
and Wildlife Management Plan (FWMP) approved in 2008
(the 2008 FWMP) with a new plan (the 2022 FWMP), so as
to reduce the resort's proposed annual water consumption by
eliminating one of the resort's proposed golf courses.
The five petitioners, The Confederated Tribes of the
Warm Springs Reservation of Oregon (the Tribe), Central
Oregon LandWatch (LandWatch), Annunziata Gould,
Thomas Bishop, and Paul J. Lipscomb (collectively, petition-
ers) contend that LUBA erred in rejecting their challenges
to the approval and raise different and sometimes overlap-
ping assignments of error. The Tribe also contends, among
other arguments, that LUBA erred in concluding that its
challenges to the BOCC's failure to give sufficient weight to
the Treaty of 1855 were unpreserved.l
Thornburgh has filed a cross -petition, challeng-
ing LUBA's remand, contending that LUBA substituted its
judgment for that of the BOCC and weighed the evidence in
the record as the factfinder in the first instance, rather than
reviewing for substantial evidence, to find that the 2022
FWMP's compliance provisions fail to meet the "no net loss"
standard.
We review LUBA's order to determine whether it is
"unlawful in substance or procedure." ORS 197.850(9)(a). "A
1 Amici curiae —the Confederated Tribes and Bands of the Yakama Nation,
the Confederated Tribes of the Umatilla Indian Reservation, and the Nez Perce
Tribe, and, separately, the Columbia River Gorge Commission —filed briefs in
support of the Tribe's petition.
Cite as 332 Or App 361 (2024) 365
LUBA order is unlawful in substance if it represents a mis-
taken interpretation of the applicable law." Kine v. Deschutes
County, 313 Or App 370, 372, 496 P3d 1136, rev den, 369 Or
6% 499 P3d 1279 (2021).
On the Tribe's petition, we conclude that LUBA erred in
determining that the Tribe did not preserve its arguments
relating to the applicability of the Treaty of 1855 in deter-
mining whether the "no net loss" standard has been met,
and we therefore remand the order to LUBA for consider-
ation of that argument. We affirm LUBA's order in all other
respects on the petitions and cross -petition.
I. BACKGROUND
This case is the latest in a long string of challenges
to the development of the resort. We described the back-
ground facts of the resort in our recent opinion in Gould v.
Deschutes County, 322 Or App 11, 518 P3d 978 (2022), and
we set them out here again only as necessary to resolve the
issues raised on judicial review.
Deschutes County provides for the development
of destination resorts by a three -step approval process
described in Deschutes County Code (DCC) 18.113.040. At
step one, a Conceptual Master Plan (CMP) for the resort is
processed for approval as though it were a conditional use
permit. DCC 18.113.040(A). At the second step, application
is made for a Final Master Plan (FMP). DCC 18.113.040(B).
The final step is a land division or site -plan review. DCC
18.113.040(C).2
In 2008, the county approved an FMP for the resort,
and we upheld that approval on judicial review. Gould v.
Deschutes County, 59 Or LUBA 435 (2009), aff "d, 233 Or App
623, 227 P3d 758 (2010) (affirming the FMP). The FMP
2 Thornburgh has completed the three -step approval process for: (1) a golf
course site plan; (2) a tentative plan for Phase A-1 of development; and (3) a site
plan for 80 overnight lodging units (OLUs). Those approvals were challenged and
ultimately affirmed on judicial review. See Gould v. Deschutes County, 314 Or App
636, 314 P3d 357 (2021), rev den, 369 Or 211 (2022) (affirming the approval of a
golf course site plan); Gould v. Deschutes County, 322 Or App 11, 518 P3d 978,
rev den, 370 Or 694 (2022) (affirming the approval of the site -plan review for 80
OLUs); Gould v. Deschutes County, 322 Or App 571(2022) (nonprecedential mem-
orandum opinion affirming the approval of the tentative plan for Phase A-1).
366 Confederated Tribes of Warm Springs v. Deschutes Cty.
provides for phased development. Both the CMP and the
FMP included Condition 1, which provides:
"Approval is based upon the plan as submitted. Any sub-
stantial change to the approved plan will require a new
application."
The board has determined that "substantial changes" has
the meaning as the term is defined in DCC 18.113.080, "an
alteration in the type, scale, location, phasing or other char-
acteristic of the proposed development such that findings
of fact on which the original approval was based would be
materially affected." 3
The CMP for the resort approved three golf courses
and required at least one golf course to be constructed in
the first phase. The approval was supported by an economic
benefits analysis (Benefit Study) explaining that golf course
facilities would be an important source of new jobs with a
total of 125 newly created jobs and 3.9 million dollars in
employee compensation. Based on the Benefit Study, the
county found that the resort "will generate a large number
of full-time positions that will have a positive effect on the
a
Deschutes County economy."
The sole source of water for the resort is groundwa-
ter to be pumped from the Deschutes River Basin aquifer.4
There has been significant litigation around the adequacy
of the resort's ability to provide the necessary groundwa-
ter as well as to satisfy the "no net loss" standard of DCC
18.113.070(D), which is a county criterion for destination
resort development that requires that "[a]ny negative impact
on fish and wildlife resources will be completely mitigated so
that there is no net loss or net degradation of the resource,"
but those disputes have thus far been resolved favorably to
Thornburgh.
3 DCC 18.113.080 relates to modifications of a CMP and provides:
"Procedure for Modification of a Conceptual Master Plan. Any substan-
tial change, as determined by the Planning Director, proposed to an 322An
insubstantial change may be approved by the Planning Director. Substantial
change to an approved CMP, as used in DCC 18.113.080, means an alteration
in the type, scale, location, phasing or other characteristic of the proposed
development such that findings of fact on which the original approval was
based would be materially affected."
4 No surface water runs through the resort property.
Cite as 332 Or .App 361 (2024) 367
The FMP for the resort includes a fish and wildlife
habitat mitigation plan (FWMP) to satisfy the "no net loss"
standard. In 2008, Deschutes County approved the 2008
FWMP for the resort, and we ultimately upheld that determi-
nation. See Gould v. Deschutes County, 233 Or App 623, 636-
43, 227 P3d 758 (2010) (describing 2008 FWMP litigation).
The litigation involved in these petitions and the
cross -petition concerns Thornburgh's request to modify the
originally approved FMP and 2008 FWMP so as to reduce
its groundwater consumption through reduced pumping of
groundwater from the aquifer, for the stated purpose of com-
plying with the "no net loss" standard. Thornburgh proposed
to reduce the resort's annual groundwater pumping from
2,129 to 1,460 acre feet, an approximate 30 percent reduc-
tion, and an approximately 35 percent reduction in water
consumption, from 1,356 to 882 acre feet, in part, by not
developing one of the approved golf courses.5 The applica-
tion proposed that, as a modification of the 2008 FWMP and
in order to satisfy the "no net loss" standard, Thornburgh
would acquire water rights to provide fish habitat benefits
or would cancel. other vv ater rights.
After a public hearing, a Deschutes County hear-
ings officer rejected the application, based primarily on
Thornburgh's failure to provide a sufficient plan for com-
pliance with the "no net loss" standard. On Thornburgh's
and Gould's appeal, the board held a de novo public hearing.
The Tribe, which had not previously been given notice of or
participated in the proceedings, requested to be added as a
party and participated. The board's order summarized the
evidence that had been submitted and found:
"According to the science and technical reports, there is gen-
erally no scientific or biological significance in the impacts
under the 2022 FWMP and, as a whole, the plan provides
benefits to habitat for fish and aquatic species. Given this
context, we find that the 2022 FWMP plan meets the No
Net Loss Standard."
Over objections by petitioners and the Oregon Department of
Fish and Wildlife (ODFW), the board approved Thornburgh's
5 LUBA's order explains that "consumptive use" means the amount of ground
water appropriation that will not return to surface water flows.
368 Confederated Tribes of Warm Springs v. Deschutes Cty.
request for modification, rejecting contentions that the "no
net loss" standard required ODFW and the Tribe's concur-
rence and concluding that Thornburgh's experts had pro-
vided credible, substantial evidence that the 2022 FWMP
satisfies the "no net loss" standard:
"The 2022 FWMP and its extensive technical evidence
shows that stream flows will increase and temperatures
decrease as a result of implementation of the 2022 FWMP.
As such, we find that methods provided by the groundwa-
ter mitigation program, including the methods relied upon
by the 2022 FWMP, are sufficient to meet the no net loss
standard."
The board approved the 2022 FWMP as a modification of
the 2008 FMP.
LUBA upheld the board's approval as against all of
the petitioners' challenges in most respects but remanded
the board's order for reconsideration of those issues that
LUBA concluded required further analysis, one of which we
address on the cross -petition. We consider the various peti-
t,ivoy��+ i the order +11a1- iTe nnnAllfrIP malzP.G logs Al gpngt,-
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II. LIPSCOMB'S PETITION, CHALLENGING LUBA'S
DEFERENCE TO THE BOARD'S CONSTRUCTION OF
"SUBSTANTIAL CHANGE" AS USED IN CONDITION 1
Lipscomb raises two assignments of error on judi-
cial review relating to the BOCC's construction of the text of
Condition 1 of the CMP and FMP, which provides that "[a]ny
substantial change to the approved plan will require a new
application." Lipscomb asserts in his first assignment that
the board's construction of "substantial change," as used in
Condition 1 is not entitled to deference, because Condition
1 is not an ordinance for which the board's construction is
entitled to deference. Siporen v. City of Medford, 349 Or 247,
259, 243 P3d 776 (2010) (setting forth standard of deference
to local government's plausible construction of its own zon-
ing ordinances). However, as we understand LUBA's order,
LUBA concluded that the board's construction was of the
ordinance itself and not Condition 1. As LUBA concluded,
the board's conclusion that the definition of "substantial
change" in DCC 18.113.080 applies to Condition 1 is a
Cite as 332 Or App 361 (2024) 369
plausible construction to which deference is owed. LUBA did
not err.
Lipscomb's second assignment focuses on Condition
1's requirement that la]ny substantial change to the
approved plan will require a new application." (Emphasis
added.) Lipscomb argues in his second assignment that the
requirement for a "new application" means that, upon a sub-
stantial change, the application process must begin anew,
with a new CMP. Thus, Lipscomb contends that LUBA erred
in affirming the board's determination that it was sufficient
for Thornburgh to file an application to modify only the
aspect of the approval that is proposed to be changed. LUBA
concluded that that construction of the DCC was a plausi-
ble one entitled to deference. We have reviewed the rele-
vant provision of the DCC and agree with LUBA that the
board's construction of the DCC is a plausible one to which
deference is owed. And assuming that the proposed changes
are "substantial," within the meaning of DCC 13.113.030,6
LUBA correctly held that the board could plausibly construe
the DCC to not require that the proposed changes start the
., 14.. 4-4 Yf process from crra*nh but rather be addressed
Q.pp110E11i1V11 P1 C""S from i Zvi. C , .��+v..,
through an application for modification of the FMP. That
concludes our discussion of Lipscomb's petition, with the
exception of Lipscomb's concurrence with an argument
made by Gould, which we discuss later.
III. LANDWATCH'S PETITION, CHALLENGING
LUBA'S DEFERENCE TO THE BOARD'S CONSTRUC-
TION OF "SUBSTANTIAL CHANGE" AS LIMITED TO
CONSIDERATION OF PROPOSED MODIFICATION
In approving the 2022 FWMP, the board found that
the CMP and FMP approvals did not depend on or require
the planned resort to use all of the water predicted as
6 DCC 18.113.080 provides:
"Procedure for Modification of a Conceptual Master Plan. Any substan-
tial change, as determined by the Planning Director, proposed to an approved
CMP shall be reviewed in the same manner as the original CMP. An insub-
stantial change may be approved by the Planning Director. Substantial
change to an approved CMP, as used in DCC 18.113.080, means an alteration
in the type, scale, location, phasing or other characteristic of the proposed
development such that findings of fact on which the original approval was
based would be materially affected."
370 Confederated Tribes of Warm Springs v. Deschutes Cty.
consumptive use in the FMP. Thus, the board found that
Thornburgh's commitment in the 2022 FWMP to use less
water than contemplated in the FMP and to forego develop-
ing a golf course that had been approved in the FMP did not
change the approved resort in a manner that would materi-
ally affect the CMP/FMP findings as to the satisfaction of a
county code requirement that adequate water be available
for all proposed uses? LUBA agreed.
LandWatch raises three assignments of error.
LandWatch's first assignment, like Lipscomb's, relates to
"substantial change." LandWatch asserts that LUBA erred
in deferring to the board's conclusion that the determina-
tion whether there has been a "substantial change" is lim-
ited to consideration whether the proposed modification
gives rise to a "substantial change." In LandWatch's view, a
"substantial change" is any change that materially affects
the findings of fact on the which the CMP or FMP approv-
als rely. LandWatch asserts that the evidence shows that
Thornburgh has no water available to supply the resort,
primarily through the expiration of Water Right Permit
0-17V3V1 alld that that is a substantial change that should
have been addressed by the board. LandWatch contends
that LUBA's order is unlawful in substance in not deciding
whether Thornburgh's loss of the available water to supply
to the resort constitutes a Condition 1 substantial change,
and, like Lipscomb, asserts that LUBA erred in failing
to reverse the board's order and require that Thornburgh
begin the application process anew.
LUBA reasoned that the question of the availabil-
ity of water to the resort was not a required aspect of the
board's consideration in determining whether the changes
proposed by Thornburgh to the FMP and the FWMP met
' DCC 18.113.070(K) is a resort approval criterion that requires the county
to find:
"Adequate water will be available for all proposed uses at the destination
resort, based upon the water study and a proposed water conservation plan.
Water use will not reduce the availability of water in the water impact areas
identified in the water study considering existing uses and potential devel-
opment previously approved in the affected area. Water sources shall not
include any perched water table. Water shall only be taken from the regional
19 aquifer. Where a perched water table is pierced to access the regional
aquifer, the well must be sealed off from the perched water table."
Cite as 332 Or App 361(2024) 371
the "no net loss" standard. Under the board's interpretation
of the "substantial change" inquiry, to which LUBA properly
deferred, that conclusion was correct.$ The board identified
its task as determining whether the changes proposed by
Thornburgh were substantial, not whether circumstances
outside of the application had substantially changed. And as
Thornburgh correctly responds, the record does not estab-
lish that Thornburgh has no water rights available to it.
See Gould v. Deschutes County, 322 Or App at 18 (affirming
LUBA's determination that Thornburgh had met the docu-
mentation requirement of FMP Condition 10 pertaining to
water rights and mitigation).
LandWatch further.argues that LUBA erred in fail-
ing to decide that issue, in violation of ORS 197.835(11)(a):
"Whenever the findings, order and record are sufficient
to allow review, and to the extent possible consistent with
the time requirements of ORS 197.830(14), the board shall
decide all issues presented to it when reversing or remand-
ing a land use decision described in subsections (2) to (9) of
this section or limited land use decision described in ORS
197.828 and 197.195 "
In fact, LUBA did consider LandWatch's argument and
explicitly rejected it, based on its deference to the county's
decision to interpret "substantial change" to have the mean-
ing that it does in DCC 18.113.080.
LandWatch, like Lipscomb, contends that LUBA
erred in deferring to the county's interpretation of Condition
1 as to the meaning of "substantial change," because no def-
erence is owed to the interpretation of a condition, as opposed
to a code provision. LandWatch further argues that, textu-
ally, "substantial change" should not mean the same thing
in Condition 1 as it does in DCC 18.113.080:
8 LUBA said: "The county has interpreted `substantial change' in Condition
1 to have the same meaning as the term is used in DCC 18.113.080, which is
`an alteration in the type, scale, location, phasing or other characteristic of the
proposed development such that findings of fact on which the original approval
was based would be materially affected.' Thus, Thornburgh must submit a new
application for any proposed modification that will alter a characteristic of the
approved resort development such that any finding of fact supporting the CMP or
FMP approval would be materially affected."
372 Confederated Tribes of Warm Springs v. Deschutes Cty.
"The definition of `substantial change' in DCC 18.113.080
is limited to that section. It is not a global definition of the
term `substantial change.' DCC 18.113.080 does not define
a `substantial change' as a `modification: Rather, DCC
18.113.080 defines a `substantial change' as an `alteration.'
In DCC 18.113.080, some CMP modifications are substan-
tial changes, and some substantial changes are CMP mod-
ifications, but it does not follow that all substantial changes
must be CMP modifications."
In LandWatch's view, DCC 18.113.080 does not mandate
that all "substantial changes" be defined as in that sec-
tion of the DCC. LandWatch therefore contends that LUBA
should have interpreted "substantial change" as a matter
of law. The county's construction is plausible. LUBA there-
fore did not err in deferring to the county's conclusion that
the meaning of "substantial change" as defined in DCC
18.113.080 should apply to Condition 1.
In its second assignment, LandWatch makes the
same argument as Lipscomb relating to the board's conclu-
sion that Thornburgh was not required to begin the appli-
cation process anew but could seek.. appro- Val for the pro-
posed changes through a modification application. We reject
LandWatch's assignment for the same reason we reject
Lipscomb's.
In its third assignment of error, LandWatch con-
tends that LUBA erred in affirming the board's determi-
nation that CMP Condition 28 has been superseded by
Condition 37. Condition 28 provided:
"Applicant shall abide at all times with the [Memorandum
of Understanding] with BLM, dated September 28, 2005,
regarding mitigation of impacts on surrounding federal
lands, to include wildlife mitigation and long range trail
planning and construction of a public trail system. The mit-
igation plan adopted by Applicant in consultation with Tetra
Tech, ODFW and the BLM shall be adopted and imple-
mented throughout the life of the resort."
(Emphasis added.) After litigation determining that
Condition 28 was legally insufficient because it failed to pro-
vide an opportunity for public participation in the board's
decision on whether Thornburgh's mitigation plan satisfied
Cite as 332 Or App 361(2024) 373
the "no net loss" standard, Gould v. Deschutes County (Gould
II ), 216 Or App 150, 159, 171 P3d 1017 (2007), the BOCC
adopted Condition 37:
"Applicant shall demonstrate compliance with DCC
18.113.070(D) by submitting a wildlife mitigation plan to
the County as part of its application for Final master plan
approval. The County shall consider the wildlife mitigation
plan at a public hearing with the same participatory rights
as those allowed in the CMP approval hearing."
LandWatch asserts that under Condition 28, the ODFW
must approve Thornburgh's mitigation plan. LandWatch
further asserts that, contrary to LUBA's holding, Condition
37 does not supersede Condition 28. Thus, LandWatch
asserts, LUBA erred in affirming the board's approval of
the 2022 FWMP, which was not approved by the ODFW.
LandWatch's contention is answered by the fact
that, as a textual matter, Condition 28 does not require
ODFW's approval of a mitigation plan; it requires that the
plan be developed in consultation with ODFW. There is no
dispute that the 2022 FWMP was developed in consulta-
tion with the ODFW. LUBA did not err in concluding that
the board's approval of the 2022 FWMP did not require the
approval of ODFW.
IV. GOUD'S PETITION, CHALLENGING LUBA'S
REJECTION OF CONTENTION THAT UNDERLYING
CMP IS VOID
In her first assignment of error, in which Lipscomb
joins, Gould contends that the board lacked authority to con-
sider Thornburgh's request for a modification of the FMP,
because the underlying CMP had become void and no new
CMP has been initiated. In rejecting that argument, LUBA
deferred to the board's conclusion that the CMP had been
incorporated into and superseded by the FMP. We agree
with LUBA that the board's conclusion represents a plausi-
ble construction of the DCC and that deference was there-
fore appropriate.
Additionally, as LUBA held, Gould's contention has
been rejected by LUBA in Central Land and Cattle, LLC v.
Deschutes County, 74 Or LUBA 326, aff'd without opinion,
374 Confederated Tribes of Warm Springs v. Deschutes Cty.
283 Or App 286, 388 P3d 739 (2016), rev den, 361 Or 311
(2017). Gould challenges LUBA's determination that Gould
is attempting to litigate an issue that has previously been
determined in Central Land and Cattle, LLC, contending
that LUBA incorrectly relied on the law of the case, which
it argues applies only to appellate decisions. We need not
resolve whether LUBA properly referred to law of the case,
because, as we said in Gould v. Deschutes County, 322 Or App
at 23, a party is not entitled to relitigate issues that have
been resolved on review of previous phases of the same land
use litigation. Beck v. Tillamook, 313 Or 148, 153, 831 P2d
678 (1992). LUBA's prior holding is conclusive of the issue.9
In her second assignment of error, Gould argues,
similarly to LandWatch, that water availability conditions
have changed significantly since the original CMP was
approved and that a new CMP therefore must be initiated
pursuant to DCC 18.113.070(K). For the same reason that
we reject LandWatch's first assignment of error, we reject
this assignment.
9 LUBA held:
"For purposes of this appeal we will assume without deciding that the
CMP approval has become `void' under DCC 22.36.010(B)(1). However, even
if we assume the County's CMP approval became void on November 18, 2011,
we conclude below in addressing the third cross -assignment of error that the
FMP remand proceedings were initiated by Thornburgh Resort on August
15, 2011, which was before the CMP became void. The county's first FMP
approval decision found, with only two exceptions, that the FMP fully com-
plies with the CMP. Those two exceptions have to do with the no net loss/deg-
radation standard that normally applies at the time of CMP approval. The
county's decision to defer its finding on the DCC 18.113.070(D) no net loss/
degradation standard until FMP approval was affirmed in Gould v. Deschutes
County, 57 Or LUBA 403 (2008), aff'd, 227 Or App 601, 206 P3d 1106 (2009).
As Gould correctly notes, the CMP potentially remains a relevant source of
FMP approval considerations because at least some of the CMP conditions
of approval effectively cannot be performed until after FMP approval. But
those conditions of approval were carried forward in the county's first FMP
approval decision and remain part of the current FMP approval decision.
All requirements of the CMP approval are now requirements of the county's
FMP approval. The FMP approval has effectively incorporated and displaced
the CMP approval. In these unusual circumstances, where the only remain-
ing questions on appeal concern two issues that were expressly deferred to
the FMP decision, we conclude it was not error for the county to proceed to
determine on remand whether the errors identified by LUBA in the FMP
could be corrected and the FMP approved for a second time, even though the
CMP approval has become void."
74 Or LUBA at 346 (footnote omitted).
Cite as 332 Or App 361 (2024) 375
V. BISHOP'S PETITION, CHALLENGING SUFFI-
CIENCY OF EVIDENCE OF THE BOARD'S BASELINE
DETERMINATION AND LUBNS DEFERENCE TO THE
BOARD'S CONSTRUCTION OF DCC 18.113.070(D)
DCC 18.113.070(D) requires that a destination
resort mitigate all negative impacts such that there is no
net loss or degradation of fish and wildlife resources, and
provides:
"In order to approve a destination resort, the Planning
Director or Hearings Body shall find from substantial evi-
dence in the record that:
"D. Any negative impact on fish and wildlife
resources will be completely mitigated so that there is no
net loss or net degradation of the resource."
On judicial review of the 2008 FMP approval, we inter-
preted the meaning of "fish and wildlife resources" in DCC
18.113.070(D) to "refer[] not to species of fish and wildlife,
b,-t to the habitat, that supports fish and wildlife." Gould v.
Deschutes County, 233 Or App 623, 631-633, 227 P3d 758
(2010). In that opinion, we accepted the parties' understand-
ing that DCC 18.113.070(D) requires, first, an assessment of
fish and wildlife resources before development and, second,
mitigation to make up for negative impacts caused by devel-
opment. Id. at 631. We determined that "fish and wildlife
resources" could be measured by the habitat that supports
fish and wildlife, and a plan could satisfy the standard if
it "will completely mitigate any impact on the habitat that
supports fish and wildlife, without showing that each indi-
vidual species will be maintained or replaced on a one-to-
one basis." Id. at 631-634. Thus, the first part of the "no net
loss" analysis requires an "assessment of fish and wildlife
resources before development." Id. at 631. The parties and
LUBA refer to the status of fish and wildlife resources before
development as the "baseline." Once a baseline condition is
established, and once the negative impacts are quantified,
the applicant is tasked with presenting a plan that will
ensure that the impacts are completely mitigated for the life
of the resort. The negative impacts are measured from the
376 Confederated Tribes of Warm Springs v. Deschutes Cty.
baseline conditions, for example the baseline temperatures
and flow rates.
Thornburgh presented, and the board relied on, evi-
dence of streamflow data from the 2016 hydrological year,
as a typical hydrological year, for determining baseline
flows for purposes of measuring fish habitat impacts. The
board further determined the "no net loss" standard only
requires a resort to mitigate its own impacts, not the cumu-
lative impacts of drought or other basin -wide water policy
and management issues.10 Bishop argued to LUBA that
habitat modeling should account for impacts to the stream
system habitat that are "identifiable, predictable, measur-
able, and reasonably likely to occur," such as drought and
changed stream flows in response to implementation of the
Deschutes Basin Habitat Conservation Plan (DB HCP), a
basin -wide plan that requires eight irrigation districts and
the City of Prineville to manage irrigation activities in the
Deschutes River Basin to provide habitat protections for
endangered fish and wildlife. LUBA reasoned that Bishop's
construction is one plausible reading of DCC 18.113.O70(D).
io The board found:
"Many of the arguments and issues related to Thornburgh's 2022 FWMP
are related to drought and regional well decline. Opponents assert that these
are relevant issues and should lead to denial. We disagree. The No Net Loss
Standard requires a resort to mitigate its own impacts, not the cumulative
impacts of drought or other basin wide water policy and management issues.
The No Net Loss/degradation test is limited to addressing potential negative
impacts of resort development. Impacts to habitat caused by other persons or
environmental conditions are not attributable to [the resort's] use of water or
the impacts of [resort's] use.
"Thornburgh has quantified its impacts on water quality and quantity
and the locations where these impacts will occur. It has studied waterway
conditions in a typical year, and it has also provided expert evidence that
shows the benefits of mitigation are enhanced during periods of drought.
This approach properly accounts for issues of drought and the low flow con-
ditions opponents argue make the results of Thornburgh's expert analysis of
aquatic habitat unreliable.
"Opponents, ODFW, and the Tribe have also raised issues that pend-
ing litigation regarding flow requirements and the [DB HCP] related to
the Spotted Frog may lead to additional constraints on live flows. These
issues are outside of the scope of the [resort's] impacts and [the resort] is not
required to mitigate for them.
"Thornburgh must mitigate for its impacts, alone. Further, Thornburgh's
plan relies primarily upon groundwater water sources, and its technical
analysis shows that the 2022 FWMP will result in increased surface flows
which are beneficial to fish and wildlife."
Cite as 332 Or App 361(2024) 377
But LUBA concluded that the board's construction is also
plausible, reasoning that the board's construction that "any
negative impact" may be analyzed based on a baseline flow
that represents a typical water year, measured only by the
resort's impact on the system,
"is not expressly inconsistent with the language of DCC
18.113.070(D) or the underlying policy —which is to hold
a proposed resort accountable to completely mitigate the
resort's impacts so that there is no net loss of fish resources."
LUBA thus deferred to and upheld the board's interpretation.
Bishop's assignments of error focus on the "no net
loss" standard and relate primarily to the sufficiency of
Thornburgh's evidence with respect to the "baseline" from
which to determine a mitigation plan's impact on existing
habitat and whether the 2022 FWMP satisfies the "no net
loss" standard. In his first assignment, although Bishop char-
acterizes LUBA's error as "shift [ing] the burden to Petitioners
to properly define the baseline for study of whether the resort
can meet the no net loss or degradation of fish and wildlife
resources standard, ,underl in£r the assignment is Bishop's
view that the evidence on which the board relied to establish
a baseline was simply legally insufficient, because it failed to
take into account basin -wide circumstances such as drought,
groundwater decline, well deepening, and changed flows
resulting from implementation of the DB HCP, affecting fish
habitat beyond the resort's uses and impacts.
We are not persuaded that LUBA erred in deter-
mining that the board's narrow construction of DCC
18.113.070(D) is plausible and entitled to deference. As
LUBA concluded, it is not contradicted by the text of the
code provision. Nor are we persuaded that the county's con-
struction is inconsistent with our holding in Gould, 233
Or App at 633, that "DCC 18.113.070(D) allows a focus on
fish and wildlife habitat [as opposed to each individual spe-
cies of fish] to establish that Ulu negative impact on fish
and wildlife resources will be completely mitigated so that
there is no net loss or net degradation of the resource."'
LUBA further determined that the board's deter-
mination of a baseline flow using the 2016 hydrological year
378 Confederated Tribes of Warm Springs v. Deschutes Cty.
was supported by substantial evidence. Bishop contends
that LUBA erred, because the analysis of the board ignores
pertinent changes in flows that have occurred since 2016
and that impact habitats, including drought, groundwater
decline, well deepening, and changed flows resulting from
implementation of the DB HCR In reviewing LUBA's sub-
stantial evidence determination, our role is not to reweigh
the record but to determine whether LUBA properly stated
and applied the substantial evidence standard of review.
Citizens for Responsibility u. Lane County, 218 Or App 339,
345, 180 P3d 35 (2008). LUBA did not err.
Also under his first assignment of error, Bishop
contends that LUBA erred by shifting the burden of proof
in assigning to petitioners responsibility to present the
all the factors that must be considered in determining the
proper baseline, rather than requiring the board to require
Thornburgh to provide a complete assessment. We do not
view LUBA's analysis to have shifted the burden; rather,
LUBA determined that substantial evidence supported the
board's findings.
The 2022 FWMP includes a provision relating to
"compliance" —conditions that Thornburgh must adhere
to in order to ensure that the 2022 FWMP meets the "no
net loss" standard." The board determined that "the 2022
FWMP ensures ongoing compliance with the No Net Loss
11 Section D of the 2022 FWMP compliance provision describes the methods
by which Thornburgh can establish compliance:
"Compliance: The purpose of this section is to clarify what constitutes com-
pliance with this updated 2022 FWMP, whether during the review of Resort
land use applications, as reported as part of annual monitoring, or for any
other purpose. As noted above Thornburgh owns 1,211 AF of water rights to
be used for pumping or mitigation and pumping at the point of diversion or
appropriation of the certificate has been discontinued. For the reasons dis-
cussed herein compliance with this FWMP has been met for rights b-f, and
will be met for the TSID water (g) in the manner discussed in this Section,
lb below. For any additional water rights that are acquired compliance will
be met as described herein.
111. Compliance with this FWMP will occur differently for water appropri-
ated from a surface water Point of Diversion (POD) versus a groundwater
Point of Appropriation (POA) or for a mitigation credit as follows:
"a. POA - Groundwater: For any future rights that may be acquired, com-
pliance occurs upon the cessation of pumping of the rights and along with
any of the following: deed evidencing the transfer of ownership, a submittal
to OWRD of any of the following: (i) an assignment of the water right to
Cite as 332 Or App 361 (2024) 379
Standard and sufficient monitoring is required by the 2022
FWMP and FMP Condition 40.1112
LUBA disagreed with the board with respect to the
compliance provision's sufficiency and remanded the 2022
FWMP compliance provision to the board, concluding that
the compliance provision's reliance on OWRD applications
for groundwater permits was not sufficient. LUBA agreed
with Bishop's contention that the county must require proof
of completion of each alternative OWRD process, rather than
mere ownership of a certificate and submittal of an applica-
tion to OWRD, before the county may conclude that the "no
net loss" standard has been satisfied. LUBA agreed with
Bishop's contention that, under the 2022 FWMP, the county
has no way to determine if fish habitat mitigation water will
be available before approving actual buildings on site under
a third -stage approval. LUBA also concluded that the 2022
FWMP reporting requirements are not sufficient to make
up the shortcoming of the compliance provisions to demon-
strate "no net loss." Thus, LUBA issued a narrow remand,
relating to the sufficiency of the compliance conditions of the
9n99 VAUMP xxrifh respect to groundwater permits."
In his second assignment of error, Bishop contends
that the entire compliance section —not just that related to
Thornburgh, (ii) an application that seeks OWRD approval of a transfer to
pump at the Resort property, or (iii) a cancellation in -lieu of mitigation.
"b. POD - Surface Water: Once acquired, Compliance occurs upon the cessa-
tion of pumping at the source and submittal to OWRD, and OWRD issues a
final order (or its equivalent) approving any of the following: (i) an application
that transfers to pump at the Resort property, (ii) an application that trans-
fers the water to an in -stream lease, (iii) the cancellation in -lieu of mitiga-
tion, or (iv) an application to transfer to obtain mitigation credits, permanent
or temporary.
"c. Mitigation Credit: In the event that Thornburgh acquires mitigation cred-
its, compliance occurs when Thornburgh provides proof of ownership or proof
of submittal to OWRD to use the credits as mitigation.
"Thornburgh also agrees to the following measures to provide mitigation bene-
fits over and above the benefits achieved by the mandatory measures described
above."
12 Condition 40 provides: "Thornburgh shall comply with the 2022 [FWMP],
including its compliance and reporting mechanisms found in Section II of that
plan."
13 We note that Thornburgh's cross -petition, which we address later in this
opinion, challenges LUBA's determination as to the sufficiency of the compliance
provisions.
380 Confederated Tribes of Warm Springs v. Deschutes Cty.
groundwater --was legally insufficient, because it allows
Thornburgh to use all current listed water rights for con-
sumption, leaving compliance with the "no net loss" standard
to unidentified and not -yet purchased (or proven available)
water rights. Bishop asserts that the board's finding that
such prospective purchase of water rights would result in no
net loss or degradation of fish and aquatic wildlife habitat has
no support in the record, or basis in law or fact. Thus, Bishop
contends, the 2022 FWMP "undeniably creates a loophole for
compliance that does not assure no net loss/degradation of
fish and aquatic wildlife habitat." Bishop also argues that an
"instream water right" (ISWR) lease is insufficient as a form
of compliance for surface water rights used for mitigation.
Thornburgh responds that Bishop's arguments
under his second assignment as relating to ISWR leases and
surface water compliance provisions are not preserved —
that Bishop did not make those arguments to LUBA and
that LUBA's remand relates only to the inadequacy of com-
pliance measures as to groundwater, and we agree. It is
apparent from LUBA's order that Bishop did not present the
lease argument to LT TR A and that the remand is limited
to compliance provisions relating to groundwater only.14 We
reject Bishop's second assignment of error as unpreserved.
14 LUBA explained:
"Thornburgh does not argue that the reporting requirements in the 2022
FWMP are sufficient to demonstrate no net loss, and we do not see that they
are. The required report might show that the quantities and quality of water
assumed in the 2022 FWMP have been provided, or it might not. No addi-
tional reporting is required during the review of any land use application
related to the resort. As we understand it, the 2022 FWMP modeling assumes
equal efficacy and reliability as between instream water right transfers and
voluntary cancellation of water rights so that those legal processes have the
same instream impacts on water quality and quantity. We agree with Bishop
that the county's findings are inadequate to explain why submittal to OWRD
is sufficient to satisfy the no net loss standard with respect to groundwater
sources for fish habitat mitigation. Indeed, Thornburgh and the county rely
upon OWRD processes to ensure that voluntary cancellation of water rights
consistent with OWRD rules and review processes will result in improved
fish habitat. * * * The county has failed to explain how simple submittal of an
application to OWRD permits the county to rely on those OWRD processes.
"Thornburgh points to no evidence to support the county's conclusion that
the `2022 FWMP ensures ongoing compliance with the No Net Loss Standard
and sufficient monitoring is required by the 2022 FWMP and FMP Condition
40: * * * Thornburgh has not pointed to any evidence supporting a conclu-
sion that ground water right certificate ownership, cessation of pumping, and
Cite as 332 Or App 361 (2024) 381
VI. THE TRIBE'S PETITION, CHALLENGING
LUBA'S CONCLUSION THAT ERROR RELATING
TO IMPLICATIONS OF TREATY RIGHTS IS
UNPRESERVED
Under the provisions of the treaty with the Tribes of
Middle Oregon, dated June 25, 1855 (1855 Treaty), the Tribe's
predecessors ceded their traditional lands to the United
States. In exchange, they reserved the lands that became the
Warm Springs Reservation for their exclusive occupation and
use, and a non -occupancy interest in ceded lands. Specifically
with regard to fishery resources, the 1855 Treaty reserved to
the Tribe the exclusive right to take fish "in the streams run-
ning through and bordering [the Warm Springs Reservation]"
and at "all other usual and accustomed stations." 1855 Treaty;
Anthony v. Veatch, 189 Or 462, 483, 220 P2d 493 (1950).
The substantial majority of the Deschutes Basin, including
Thornburgh Resort, lies within the lands used and occupied
by the Tribe since time immemorial, and the Tribe is a sover-
eign co -manager of the fish resources of the Deschutes Basin.
The 1855 Treaty was enacted as federal law at 12
Stat 963 and is the "supreme law of the land." US Const, Art
VI, § 2; Skokomish Indian Tribe v. United States, 410 F3d
506, 512 (9th Cir 2005), cent den, 546 US 1090 (2006) (citing
Breard v. Greene, 523 US 371, 376, 118 S Ct 13521 140 L Ed
2d 529 (1998). Thus, the State of Oregon, as well as its local
governments, must observe the 1855 Treaty.15 The interpre-
tation of the 1855 Treaty is a matter of federal law. State v.
Begay, 312 Or App 647, 652, 495 Pad 732 (2021); see Felix
Cohen, Cohen's Handbook of Federal Indian Law § 2.01(1),
109 (Nell Jessup Newton ed 2012) (explaining that federal
law governs the United States' recognition of tribal status
and rights).
OWRD submittal is sufficient to ensure fish mitigation water will be pro-
vided as assumed in the 2022 FWMP."
15 We reject Thornburgh's contention that the Ninth Circuit in Skokomish
Indian Tribe held that local governments are not bound by tribal treaties. That
court held only that a tribe is not a "private person" under section 1983 and there-
fore cannot maintain a private action for damages under section 1983 against a
governmental entity that is not a party to the treaty for violation of fishing rights
reserved by the treaty. 410 F3d at 514. The court did not address whether local
governments are otherwise bound to comply with treaty provisions and the issue
was not before the court.
382 Confederated Tribes of Warm Springs v. Deschutes Cty.
The United States Court of Appeals for the Ninth
Circuit has held that the 1855 Treaty secures to the Tribe
and its members a right to a harvestable population of fish in
the Deschutes Basin and to protect the habitat necessary to
sustain those fish. See generally United States v. Washington,
853 F3d 946 (9th Cir 2017), aff"d by an equally divided court,
584 US 837 (2018). The court has held that the amount of
instream water necessary to sustain that habitat is "at least
equal to" what is needed to satisfy any applicable Endangered
Species Act (ESA) obligations for listed -fish species, including
the Middle Columbia River steelhead and bull trout. Baley v.
United States, 942 F3d 13121 1337 (9th Cir 2019).
The Tribe argued in its first assignment of error
before LUBA that the board improperly failed to consider
whether approval of the 2022 FWMP violates the fishing
clause of the 1855 Treaty and improperly failed to consider
the Treaty in determining whether the 2022 FWMP satis-
fies the "no let loss" standard under DCC 18.113.070(D) that
the board was required to apply in considering Thornburgh's
application. LUBA determined that the Tribe had failed to
o�nrvii�folc� roico 4ha issue before +he hn` rd "nd the�a"firrc'
uua,a3a.ua/a,iy i uiva, vi. uv ivv �. v visa, "%J" u u
had failed to preserve it for LUBA's consideration; thus,
LUBA did not address the merits of the issue.
In its petition for judicial review, the Tribe con-
tends that LUBA erred in determining that the Tribe failed
adequately to preserve before the board and to present
to LUBA whether the 1855 Treaty must be considered in
determining whether the 2022 FWMP satisfied the "no net
loss" standard. The Tribe points out that the right to fish
on its reserved lands, as well as in all "usual and accus-
tomed places," including those places now located on ceded
lands, see United States v. Winans, 198 US 371, 381, 25 S Ct
662, 49 L Ed 1089 (1905) ("The right to resort to the fishing
places in controversy was a part of larger rights possessed
by the Indians, upon the exercise of which there was not a
shadow of impediment, and which were not much less nec-
essary to the existence of the Indians than the atmosphere
they breathed."), includes the right to have fish to harvest in
the usual and accustomed places of harvest. United States
v. Washington, 853 F3d 946, 964 (9th Cir 2017), aff'd by
an equally divided court, 584 US 837 (2018) ("The Indians
Cite as 332 Or App 361. (2024) 383
reasonably understood Governor Stevens to promise not only
that they would have access to their usual and accustomed
fishing places, but also that there would be fish sufficient to
sustain them."). The Tribe asserts that its treaty -protected
right to fish is a resource as to which there must be "no net
loss" under DCC 18.113.070(D).16
The issue before us on judicial review is not the
correctness of the Tribe's assertion relating to the extent to
which the fishery resource guaranteed in the1855 Treaty
must be considered by the board in evaluating Thornburgh's
application, but whether the Tribe preserved the issue
before the board for review by LUBA. As counsel for the
Tribe stated at oral argument,
"If we weren't stuck on the preservation issue, we might
be before the Court deciding whether or not the Treaty
imposes this positive obligation on the County or not. But
that's not the issue before the Court today. The issue before
the Court today is has the Tribe made the requisite show-
ing to even have its day in court."
For the reasons below, we agree with the Tribe that it has
made the requisite showing.
As the parties agree, "[a)n issue which may be the
basis for an appeal to the Land Use Board of Appeals shall
" The Tribe asserted before LUBA that its treaty -protected fishery right is a
resource that is at risk of potential loss or degradation as a result of Thornburgh's
project, which relies primarily on groundwater withdrawals. Those withdrawals,
the Tribe asserts, will drain aquifers underlying the project that have connectiv-
ity to surface water flows vital to the continued survival of at -risk fish species in
the Deschutes Basin. The Tribe doubts that Thornburgh's proposal to mitigate
those negative impacts by buying and/or canceling existing water rights else-
where in the basin will sufficiently ensure that there will be enough water for fish
to survive in nearby streams, and to ensure that the water flow and temperature
will be sufficient to allow harvestable numbers of at -risk species of fish to survive
at the Tribe's usual and accustomed fishing places during the proper time of year.
The Tribe asserts that the latter is necessary to sustain the fishery resource in
fulfillment of the Tribe's treaty -protected right to that resource. The Tribe argued
before LUBA that despite multiple comments (including exhibits) and testimony
by the Tribe's representative, Austin Smith Jr., providing indigenous knowledge
about the fish and wildlife resources of the Deschutes Basin, the board decision
concluded that the Tribe provided no "expert testimony" whatsoever, including
with respect to its treaty -protected fisheries and their associated habitats. The
Tribe asserted before LUBA that the board erred when it failed to consider the
Tribe's treaty -protected right to the fishery resource in determining that there
would be no net loss or degradation as a result of Thornburgh's proposed project.
384 Confederated Tribes of Warm Springs v. Deschutes Cty.
be raised not later than the close of the record * * * before the
local government[.]" ORS 197.797(1). The Tribe preserved its
arguments relating to the impact of the 1855 Treaty on the
"no net loss" determination before the board. The record,
including the Tribe's three comment letters addressed to
the board and the Tribe's representative's testimony at the
February 1, 2023, public hearing, reflects that the Tribe
brought to the board's attention the importance of consider-
ing the Tribe's fishery resource as an aspect of the "no net
loss" standard. In a letter of January 31, 2023, the Tribe's
representative, Austin Smith Jr., General Manager of the
Tribe's Branch of Natural Resources, raised concerns about
the potential impact of the proposed 2022 FWMP on ESA -
listed fish species and about Thornburgh's lack of consul-
tation with the Tribe, despite the Tribe's status as a sover-
eign co -manager of the fisheries resources throughout the
Deschutes Basin. Smith also observed that technical exper-
tise was required to properly evaluate the complex issues
implicated by the proposed 2022 FWMP and that, while the
Tribe possessed technical expertise, it needed time assess
the issues and to consult its co -managers, ODFW and the
OWRD. in his letters to the board, Smith specifically raised
the issue of the Tribe's treaty -protected rights as implicat-
ing resources under the "no net loss" standard.l' We note,
further, Smith's March 1, 2023, letter to the board:
"[T]he Tribe does not currently have enough information
to evaluate whether [Thornburgh] can * * * demonstrate
that its water use and mitigation plan completely mitigates
negative impacts on the fishery resource so that there is
no net loss or net degradation of the resource. * * * Because
the fishery resources at issue are both treaty -protected
and vital to the Tribe's cultural identity and existence, the
Tribe urges the Commission to resolve these questions in
favor of a more deliberate process."
17 On January 3, 2022, Smith requested an extension of the record to allow
additional time for the Tribe, which had not previously received notification of
the application, to develop a response and provide additional information. With
Thornburgh's agreement, the BOCC allowed an extension of the record for 30
days. The Tribe submitted materials to the BOCC, including a letter from Smith
on January 31, 2022, explaining the connection between the Tribe's treaty -pro-
tected fishery resource and the "no net loss" standard. The hearing before the
BOCC occurred on the following day, February 1, 2023.
Cite as 332 Or App 361 (2024) 385
The standard for preservation of an issue for review before
LUBA "requires no more than fair notice to adjudicators and
opponents, rather than the particularity that inheres in judi-
cial preservation concepts." Boldt v. Clackamas County, 107
Or App 619, 623, 813 P2d 1078 (1991). Contrary to LUBA's
conclusion, the letters of January 31, 2023, and March 1,
2023, were legally sufficient to assert before the board that
the county must apply the "no net loss" standard so as to
encompass recognition of the 1855 Treaty and the Tribe's
fishery resource, as historically recognized by the Tribe, to
"include the right to have fish to harvest in the usual and
accustomed places of harvest." Washington, 853 F3d at 964.
We conclude that the board had fair notice of the Tribe's
assertion that an evaluation of the "no net loss" standard
implicated consideration of the Tribe's treaty -protected fish-
ery resource and, therefore, that the Tribe sufficiently pre-
served the issue before the board.
We further conclude that the Tribe sufficiently
raised the issue before LUBA. In its opening brief before
LUBA, the Tribe summarized its argument concerning
� h,. �P, +��• "fill-,o P.
"+17 imp roperly construed the 1855
L e llcaQ,. L1J11V VVuiavJ
Treaty by failing to consider whether its approval of the
2022 FWMP violates the fishing clause in the 1855 Treaty,
which includes a right to fish habitat protection." LUBA
viewed that argument as different from and insufficient to
raise the more precise argument that the Tribe stated in its
reply brief and at oral argument before LUBA, and which
it now raises on judicial review, that "proper application of
DCC 18.113.070(D) required the County to consider whether
the 2022 FWMP violates the fishing clause of the 1855
Treaty." The Tribe's argument in its opening brief before
LUBA was not so narrow. Implicit in the Tribe's argument
that the board had approved the 2022 FWMP in violation of
the fishing clause of the 1855 Treaty was the contention that
the "no net loss" requirement of DCC 18.113.070(D) must be
construed to include consideration of the Tribe's treaty fish-
ing rights. The Tribe made the latter point explicitly in its
argument under the second assignment:
"The [board] cannot conclude, as a matter of law, that `sys-
tem wide benefits' (whatever that phrase may mean) sat-
isfy the no net loss standard in DCC 18.113.070(D) without
386 Confederated Tribes of Warm Springs v. Deschutes Cty.
expressly finding that the 2022 FWMP does not violate
either the 1855 Treaty or [other state lawb"
Thus, we conclude that the Tribe adequately articulated
in its opening brief before LUBA that the treaty -protected
fishery resource is a resource to which there can be "no net
loss" or degradation under DCC 18.113.070(D), and that any
net loss to the Tribal fishery resource is a violation of DCC
18.113.070(D) and the 1855 Treaty. Further, in its reply brief
before LUBA, the Tribe clarified that position when it argued:
"The [board] and parties had fair notice that Tribe asserted
that the fish resources affected by the 2022 FWMP are
protected by the 1855 Treaty. The Tribe also demonstrated
that it understood that DCC 18.113.070(D) contains the
applicable approval criterion, which requires no net loss or
degradation of fish resources, including those protected by
the 1855 Treaty. The Tribe asserted treaty rights in the fish
resources of the Deschutes Basin, including an enforceable
right to take fish through the basin and the right to fish
habitat protection so that it would have fish to take."
We conclude that the Tribe adequately preserved before the
board and presented to LUBA its arguments concerning the
relationship between the Tribe's treaty rights and the "no
net loss" standard. LUBA erred in concluding otherwise.
In its second assignment of error, the Tribe con-
tends that LUBA's order misapplied the substantial evi-
dence standard of review and is unlawful in substance in
failing to consider evidence supplied by the Tribe based on
its indigenous knowledge. We have held that LUBA prop-
erly deferred to the board's narrow construction of DCC
18.113.070(D) that negative impacts are to be measured
only by the resort's impact on the system, not the cumu-
lative impacts of drought or other basin -wide water pol-
icy and management issues. As for indigenous knowledge
related specifically to impacts of the resort, in its briefing,
the Tribe argued that "indigenous knowledge," to which
the Tribe asserts the county paid short shrift, consisted of
the entirety of the comments and materials submitted by
the Tribe, including exhibits, and testimony from Smith,
regarding the fish resources of the Deschutes Basin. At oral
argument before us, the Tribe argued that if the Tribe had
Cite as 332 Or App 361 (2024) 387
had sufficient time for preparation for the hearing before the
board, it could also have presented as indigenous knowledge
evidence concerning the impact of the resort's pumping on
very specific seasonal fishing grounds.
On this assignment, we are guided by our standard
of review, under which we consider only whether LUBA
correctly applied the substantial evidence standard in its
determination that the county's decision demonstrates that
the county considered the Tribe's evidence concerning indig-
enous knowledge and weighed the Tribe's evidence against
Thornburgh's evidence. Given the limited record before the
county, we conclude that LUBA did not err.
But, assuming that LUBA remands the case to the
board for consideration of the Tribe's arguments relating to
the treaty -protected fishery resource on the first assignment
of error, we highlight that remand will allow an opportunity
for the Tribe to present evidence of indigenous expertise
and knowledge for the board's consideration that the Tribe
asserts it did not have adequate time to present due to its
late involvement in the proceedings.
VII. THORNBURGH'S CROSS -PETITION RELATING
TO LUBA'S REMAND OF GROUNDWATER COMPLI-
ANCE PROVISIONS
In its cross -petition, Thornburgh challenges LUBA's
order determining that groundwater compliance measures
and reporting requirements set forth in the 2022 FWMP
are insufficient. Thornburgh contends that LUBA's order is
unlawful "in procedure," because the board and weighed the
evidence in the record as the factfinder in the first instance,
rather than reviewing for substantial evidence.
As to groundwater compliance, Section D of the
2022 FWMP provides:
"For any future rights that may be acquired, compliance
occurs upon the cessation of pumping of the rights and along
with any of the following: deed evidencing the transfer of
ownership, a submittal to OWRD of any of the following:
(i) an assignment of the water right to Thornburgh, (ii)
an application that seeks OWRD approval of a transfer to
388 Confederated Tribes of Warm Springs v. Deschutes Cty.
pump at the Resort property, or (iii) a cancellation in -lieu
of mitigation."
(Emphasis added.) LUBA agreed with Bishop's contention
that the compliance provision was inadequate to meet the
"no net loss" standard to the extent that it permitted only a
"submittal" to OWRD of an application for an assignment of
a water right to Thornburgh, rather than an actual approval
of an assignment of the water right.
LUBA said in its order, "We agree with Bishop that
the county's findings are inadequate to explain why submit-
tal to OWRD is sufficient to satisfy the no net loss stan-
dard with respect to groundwater sources for fish habitat
mitigation." LUBA further concluded, "Thornburgh has not
pointed to any evidence supporting a conclusion that ground
water right certificate ownership, cessation of pumping,
and OWRD submittal is sufficient to ensure fish mitigation
water will be provided as assumed in the 2022 FWMP."
Thornburgh contends in its cross -petition that
LUBA misunderstood the compliance provision. Thornburgh
asserts that there is much evidence in the record that it is
the cessation of pumping of any newly acquired groundwa-
ter interest that results in mitigation, by allowing the water
to remain in the aquifer in support of fish habitat, and
that the additional documentation required by an applica-
tion to the OWRD merely reinforces the cessation of use of
the water. We have reviewed the record and conclude that
LUBA correctly applied the substantial evidence standard
in its evaluation of the compliance and reporting require-
ments. We therefore reject Thornburgh's contention on its
cross -petition.
Reversed and remanded to LUBA on petition of The
Confederated Tribes of the Warm Springs Reservation of
Oregon, for consideration of Tribe's first assignment of error
to LUBA; affirmed on cross -petition; otherwise affirmed.
1 BEFORE THE LAND USE BOARD OF APPEALS
2� OF THE STATE OF OREGON
3
4 THE CONFEDERATED TRIBES OF THE WARM
5 SPRINGS RESERVATION OF OREGON,
6 Petitioner,
7
8 and
9
10 CENTRAL OREGON LANDWATCH,
11 ANNUNZIATA GOULD, and THOMAS BISHOP,
12 Intervenors -Petitioners,
13
14 vs.
15
16 DESCHUTES COUNTY,
17 Respondent,
18
19 and
20
r�r�T n r 7 n Tin AND !' n TTT T (" Oj � n Tvv r r (r
G 1 l.i.Lil 1 ,L LL-11 L 1 11 Vll VL 11 1 LL ". lY "I J. ,
22 PINNACLE UTILITIES, LLC, and KAMERON DELASHMUTT,
23 Intervenors -Respondents,
24
25 LUBA No. 2023-038
26
27 ANNUNZIATA GOULD,
28 Petitioner,
29
30 and
31
32 THE CONFEDERATED TRIBES OF THE WARM
33 SPRINGS RESERVATION OF OREGON,
34 CENTRAL OREGON LANDWATCH,
35 PAUL J. LIPSCOMB, and THOMAS BISHOP,
36 Intervenors -Petitioners,
37
38 vs.
Page I
I
2 DESCHUTES COUNTY,
3 Respondent,
4
5 and
6
7 CENTRAL LAND AND CATTLE COMPANY, LLC,
8 PINNACLE UTILITIES, LLC, and KAMERON DELASHMUTT,
9 Intervenors -Respondents.
10
1 I LUBA No. 2023-039
12
13 CENTRAL OREGON LANDWATCH
14 Petitioner,
15
16 and
17
18 THE CONFEDERATED 'TRIBES OF THE WARM
19 SPRINGS RESERVATION OF OREGON,
20 ANNUNZIATA GOULD, and THOMAS BISHOP,
9] Intervenors -Petitioners,
22
23 vs.
24
25 DESCHUTES COUNTY,
26 Respondent,
27
28 and
29
30 CENTRAL LAND AND CATTLE COMPANY, LLC,
31 PINNACLE UTILITIES, LLC, and KAMERON DELASIIMUTT,
32 Intervenors -Respondents.
33
34 LUBA No, 2023-041
35
36 FINAL OPINION
37 AND ORDER
38
Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Appeal from Deschutes County.
Josh Newton filed a petition for review and reply brief and argued on
behalf of petitioner Confederated Tribes of the Warm Springs Reservation of
Oregon. Also on the briefs were Ellen Grover and Best Best & Krieger LLP.
Jennifer Bragar filed a petition for review, intervenors -petitioners' briefs,
and reply briefs, and argued on behalf of petitioner Annunziata Gould and
intervenors -petitioners Paul J. Lipscomb, and Thomas Bishop. Also on the briefs
were Jay M. Harris and Tomasi Bragar Dubay.
Carol Macbeth filed a petition for review and reply brief and argued on
behalf of petitioner Central Oregon Landwatch.
No appearance by Deschutes County.
J. Kenneth Katzaroff filed the intervenors -respondents' briefs and argued
on behalf of intervenors -respondents. Also on the briefs were Bailey M. Oswald,
Megan J. Breen, and Schwabe, Williamson & Wyatt, P.C.
z-AI'�vi�,DICY, Board Member; 1n.v1 riI.3, 8VQrU (2 arl; vTDD, Board
Member, participated in the decision.
REMANDED 01/12/2024
You are entitled to judicial review of this Order. Judicial review is
governed by the provisions of ORS 197.850.
I 'FABLE OF CONTENTS
2
I. NATURE OF THE DECISION
5
3
II. BACKGROUND
5
4
III. MOTIONS TO TAKE OFFICIAL NOTICE
15
5
IV. MOTIONS TO STRIKE
16
6
V. 1855 TREATY RIGHTS
7
(Tribe First Assignment of Error)
8
VI. DUE PROCESS AND COORDINATION OBLIGATION
23
9
(Tribe Third Assignment of Error)
10
VII. NO NET LOSS STANDARD DCC 18.113.070(D)
27
11
(Tribe Second Assignment of Error; Bishop Assigmments of Error)
12
A. Preservation — The 1855 Treaty and ORS 197.460
28
13
B. The Tribe's Co -manager Status, Indigenous Knowledge,
32
14
and Evidence
15
C. ODFW critique of the 2022 FWMP
34
16
D. Baseline Habitat Conditions
37
17
E. System -wide Benefits
42
18
F. Cancellation in Lieu of Mitigation (Voluntary Cancellation)
44
19
G. OWRD Mitigation Rules
49
20
H. ORS 537.270
50
21
I. Water Rights Certificates as Evidence of Water Quantity
52
22
J. Crooked River Habitat Impacts
53
23
K. Whychus Creek Mitigation
57
24
L. 2022 FWM.P Compliance Provisions
60
25
VIII. SUBSTANTIAL CHANGE
65
26
(Gould Second Assignment of Error; COLW First and Third
27
Assignments of Error; Lipscomb First Assignment of Error)
28
A. Economic Analysis
70
29
B. Open Space
80
30
C. Water Supply, Consumption, and Conservation
83
31
D. Water System and Wastewater Disposal Plans
88
32
IX. VOID CMP
92
33
(Gould First Assignment of Error)
34
X. CMP CONDITION 28
96
35
(COLW Second Assignment of Error; Lipscomb Second Assignment of Error)
36
XI. INTERNAL INCONSISTENCIES
98
37
(Gould Third Assignment of Error)
38
XII. CONCLUSION AND DISPOSITION
98
Page 4
I
Opinion by Zamudio.
2 I. NATURE OF THE DECISION
3 Petitioners appeal a board of county commissioners decision approving
4 modification of a destination resort final master plan.
5 II. BACKGROUND
6 This appeal involves the Thornburgh Destination Resort in Deschutes
7 County, which the county initially approved in 2006.' The subject property is
8 comprised of approximately 1,970 acres of mostly undeveloped land that is
9 located approximately three miles west-southwest of the City of Redmond.
10 We start by setting out the legal framework that applies to destination
11 resorts. ORS 197.435 to 197.467 govern approval of destination resorts. "A
12 destination resort is a self-contained development that provides for visitor-
13 oriented accommodations and developed recreational facilities in a setting with
14 high natural amenities." ORS 197.445. To qualify as a destination resort in
15 Deschutes County, the resort must be located on a site of 160 acres or more. At
16 least 50 percent of the site must be dedicated to permanent open space. At least
17 seven million dollars must be spent on improvements for on -site developed
18 recreational facilities and visitor -oriented accommodations. Not less than one-
19 third of this amount must be spent on developed recreational facilities. The resort
I Appeals of land use approvals related to the Thornburgh Destination Resort
date back to 2006. Later in this decision, we refer to prior appeals that are relevant
to the issues in this appeal.
Page 5
I must provide visitor -oriented accommodations including meeting rooms,
2 restaurants with seating for 100 persons, and 150 rentable overnight lodging units
3 (OLUs),Id.
4 The destination resort statutes are implemented in Deschutes County Code
5 (DCC) chapter 18.113, under which destination resorts are subject to a three -step
6 approval process. The first step is approval of a conceptual master plan (CMP).
7 DCC 1.8.113.040(A). The CMP stage includes a right to a public hearing and the
8 county CMP decision must be based on evidence that is submitted during that
9 public process. The CMP is "reviewed for compliance with the standards and
10 criteria set forth in DCC 18.113." DCC 18.113.040(A). DCC 18.113,050 sets out
11 a list of information that must be included in an application for CMP approval.
12 DCC 18.113.060 and DCC 18.113.070 set out standards and approval criteria for
13 destination resorts .2 The standards that apply under DCC 18.113 "may be met by
14 the imposition of conditions calculated to ensure that the standard will be met."
15 DCC 18.113.075.
16 Once a CMP has been approved, the planning director may
17 administratively approve "insubstantial change[s]" to the CMP without notice or
18 hearing. DCC 18.113.080. Any "substantial change" must be reviewed and
19 approved under the same public process that applies to CMP review. Id.
2 DCC 18.113.070 requires, in part, that the decision maker find from
substantial evidence in the record that "All standards established by DCC
18.113.060 are or will be met." DCC 18.113.070(B).
Page 6
I "Substantial change to an approved CMP, as used in DCC 18.113.080, means an
2 alteration in the type, scale, location, phasing or other characteristic of the
3 proposed development such that findings of fact on which the original approval
4 was based would be materially affected." Id.
5 The second step in approving a destination resort is approval of a final
6 master plan (FMP), "which incorporates all requirements of the County approval
7 for the CMP." DCC 18.113.040(B). The CMP application is processed "as if it
8 were a conditional use permit." DCC 18.113.040(A). The planning director
9 reviews "the FMP to determine if it complies with the approved CMP and all
10 conditions of approval of the conditional use permit." DCC 18.113.040(B). If the
11 FMP involves a substantial change from the CMP, then the applicant must apply
r t• r' ti_ t r t1_ ... CI AL-P ff1 1 1 1 (1!1( 1
12 ror moaiiic a�zoxi o� ��� �Yu . D. 8.1 > 3.1 vv��, j.
13 The third step is approval of individual components of the destination
14 resort through site plan or subdivision approval. DCC 18.113.040(C). "In
15 addition to findings satisfying the site plan or subdivision criteria, findings shall
16 be made that the specific development proposal complies with the standards and
17 criteria of DCC 18.113 and the FMP." Id. With that legal context, we describe
18 the county's approval of the Thornburgh Resort CMP and FMP.
19 The county approved the Thornburgh Resort CMP in 2006 and approved
20 the FMP in 2008. As we explain further below, the IMP approval has effectively
21 incorporated and displaced the CMP approval. All requirements of the CMP
22 approval are requirements of the FMP approval. CMP and FMP Condition i
Page 7
I provides: "Approval is based upon the plan as submitted. Any substantial change
2 to the approved plan will require a new application." Record 11426, 11725.3 The
3 county has interpreted "substantial change" in Condition 1 to have the same
4 meaning as the term is used in DCC 18.113.080, which is "an alteration in the
5 type, scale, location, phasing or other characteristic of the proposed development
6 such that findings of fact on which the original approval was based would be
7 materially affected." Thus, Thornburgh must submit a new application for any
8 proposed modification that will alter a characteristic of the approved resort
9 development such that any finding of fact supporting the CMP or FMP approval
10 would be materially affected.` In those instances, before approving the
11 modification, the county must find that the proposed resort, as modified, will
17 IJµ{.14J1 .CC'' sati_, the aYlprovai critP1•in for which the supporting findings of fact are
1 L+
13 materially affected by the modification.
14 The IMP provides for phased development and compliance with a fish and
15 wildlife habitat mitigation plan (2008 FWMP) designed and found to meet the
16 "no net loss standard," which is a county criterion for destination resort
17 development that requires that "[a]ny negative impact on fish and wildlife
3 All record citations are to the Amended Consolidated Record
' The owners/applicants are intervenors -respondents Central Land and Cattle
Company, LLC, Pinnacle Utilities, LLC, and Kameron DeLashmutt. For ease of
reading, we refer to them individually and collectively as Thornburgh throughout
this decision.
Page 8
1 resources will be completely mitigated so that there is no net loss or net
2 degradation of the resource." DCC 18.113.070(D). FMP Condition 38 required
3 Thornburgh to "abide by" the 2008 FWMP, which required mitigation in advance
4 of water use and annual reporting of mitigation actions. Record 10976. The 2008
5 FWMP relied on mitigation water from certain sources to ensure a quantity and
6 quality of water that would result in predicted benefits to fish habitat, particularly
7 cold water thermal refugia. The 2008 FWMP was supported by hydrogeologist,
8 hydrologist, and fish biologist reports and opinions. The technical information
9 supporting the mitigation plan was greatly disputed before the county and
10 challenged on appeal. Ultimately, the 2008 FWMP was decided to satisfy the no
1 i net loss standard. See Gould v. Deschutes County, 233 Or App 623, 636-43, 227
12 P3 d 758 (2010) (describing MUMS F WTTVIP litigation).
13 The CMP approval explained that the resort will include two "villages,"
14 The Tribute and The Pinnacle, to be constructed in phases. The Tribute village
15 will be developed first, located on the southern half of the property, and was
16 "planned to include two golf courses, a golf practice area, golf clubhouse,
17 community center, golf cottages and luxury, view -oriented houses on lots of
18 various sizes on the hillside." Record 13087. "The Pinnacle will be located
19 primarily in the northern half of the property and is planned to include one golf
20 course, a resort hotel, resort retail area, recreational lake, a lake/boating
21 clubhouse, and individually owned, resort -style residences." Record 13088. The
Page 9
I CMP approval approved three golf courses and required at least one golf course
2 to be constructed in the first phase. Record 13091-92.5
5 The CMP approval provides:
"At least one golf course, the restaurant and the meeting rooms and
facilities are required to be constructed in Phase A, which is slated
to be in the Tribute Village. These are required by DCC
18.113.060(E) in order to qualify Phase A as a destination resort
because each phase, together with all previous phases must meet the
criteria for a destination resort. Condition of Approval #33 is
included to assure this requirement is met." Record 13092.
CMP Condition 33 provides:
"The Resort shall, in the first phase, provide for the following:
`l A4 least 150 separate rentable unit; foi visitor -oriented
lodging.
"B. Visitor -oriented eating establishients for at least 100 persons
and meeting rooms which provide eating for at least 100
persons.
"C. The aggregate cost of developing the overnight lodging
facilities and the eating establishments and meeting rooms
required in DCC 18.113.060(A)(1) and (2) shall be at least
$2,000,000 (in 1984 dollars).
"D. At least $2,000,000 (in 1984 dollars) shall be spent on
developed recreational facilities.
"E. The facilities and accommodations required by DCC
118.113.060 must be physically provided or financially
assured pursuant to DCC 18.113.110 prior to closure of sales,
rental or lease of any residential dwellings or lots." Record
13115.
Page 10
1 The economic benefits analysis supporting the CMP (Benefit Study)
2 concluded that that the golf course facilities would be an important source of new
3 jobs with a total of 125 newly created jobs and 3.9 million dollars in employee
4 compensation. Record 10588. Based on the Benefit Study, the county found that
5 the resort "will generate a large number of full-time positions that will have a
6 positive effect on the Deschutes County economy." Record 11691.
7 To date, Thornburgh has obtained three third -stage county approvals for
8 (1) a golf course site plan, (2) a tentative plan for Phase A- I of development, and
9 (3) a site plan for 80 overnight lodging units (OLUs).6 Those third -stage
10 approvals were challenged and ultimately affirmed on appeal. See Gould v.
I l Deschutes County, 314 Or App 636, 314 P3d 357 (2021), rev den, 369 Or 211
nr• i 1 �' 1� r.y sr+n c•i4[.a. r��atti• %Tn1,f lJ no IL'.l?Z/tPs
12 (2022) (arfrming trze approval a goa. c0vtI se s��.. rl An
13 County, 322 Or App, 11, 518 P3d 978, rev den, 370 Or 694 (2022) (affirming the
14 approval of the site -plan review for 80 OLUs); Gould v. Deschutes County, 322
15 Or App 571 (2022) (affirming the approval of the tentative plan for Phase A- 1).
16 In 2022, Thornburgh sought county approval to modify the FMP by
17 amending the 2008 FWMP. Record 13315-18. Thornburgh proposed to reduce
18 the resort's annual groundwater pumping from 2,129 to 1,460 acre feet, an
19 approximately 30 percent reduction, and an approximately 35 percent reduction
6 Phase A -I includes a tentative subdivision plat for single-family residential
dwelling lots and OLU lots, together with roads, utility facilities, lots, and tracts
for future resort facilities and open space.
Page I I
I in water consumption, from 1,3 56 to 882 acre feet, in part, by not developing one
2 of the approved golf courses.7 Record 13315, 13585. Thornburgh proposed to
3 obtain mitigation water rights to provide fish habitat benefits. We refer to
4 Thornburgh's plan as the 2022 FWNW. It is attached as Exhibit B to the
5 challenged decision. Record 68. Thornburgh supported the 2022 FWMP with
6 hydrogeologist, hydrologist, and fish biologist technical reports and opinions.
7 Planning staff reviewed the application and prepared a staff report. Record
8 13309-62. The hearings officer held a public hearing and issued a decision
9 denying the application. Record 6139-45. Thornburgh and petitioner Gould
10 (Gould) each appealed and the board of commissioners accepted de novo review.
11 After a hearing on February 1, 2023, before the board, the open record period
12 was left open for 14 days. Fo11t :X7i"CT a joint :'erluest of Thornburgh and petztit, er
7 We have previously explained that water pumping and water consumption
are distinct. "Consumptive use" means the amount of ground water appropriation
that will not return to surface water flows. Gould v. Deschutes County, Or
LUBA (LUBA No 2020-095, June 11, 2021) (Gould Golf), aff'd, 314
Or App 636, 494 P3d 357 (2021), rev den, 369 Or 211 (2022) (quoting OAR 690-
505-0605(2) "`Consumptive use' means [OWRD's] determination of the amount
of a ground water appropriation that does not return to surface water flows in the
Deschutes Basin due to transpiration, evaporation or movement to another
basin.") (slip op at 10 n 3); see also Gould v. Deschutes County, 79 Or LUBA
561, 575 n 11 (2019) (Gould V111), aff'd, 310 Or App 868, 484 P3d 1073 (2021).
Page 12
I The Confederated Tribes of the Warm Springs Reservation (the Tribe), the open
2 record period was extended to March 1, 2023.s
3 Opponents, including the Tribe and the Oregon Department of Fish and
4 Wildlife (ODFW) criticized Thornburgh's experts' technical report conclusions.
5 ODFW particularly criticized the baseline assumptions for the hydrological
6 modeling as not reflective of actual observed stream conditions. Opponents also
7 criticized Thornburgh's experts' failure to model changes to stream flow timing
8 and quantity that could result from the implementation of the Deschutes Basin
9 Habitat Conservation Plan (DB HCP), which is a basin -wide plan that requires
10 eight irrigation districts and the City of Prineville (the DB HCP parties) to
11 manage irrigation activities in the Deschutes River Basin to provide habitat
IIQ bls
12 protections for endangered fish and wildlife. Record 4/_j I -U0. I be j r UG Gxpla1
13 in its brief that the DB HCP parties prepared the DB HCP to obtain incidental
14 take permits from the U.S. Fish and Wildlife Service (USFWS) and National
15 Marine Fisheries Service (NMFS) because the irrigation districts and City of
16 Prineville's water use in the Deschutes River Basin has the potential to
17 incidentally harm species that are currently listed as threatened under the
18 Endangered Species Act (ESA), namely, the Oregon spotted frog, Middle
19 Columbia River (MCR) steelhead, and bull trout. Tribe's Petition for Review 10.
8 Our reference to the Tribe mirrors the Tribe's self -reference in their petition
for review.
Page 13
I Incidental take permits will allow the DB HCP parties to manage their water use
2 without the threat of prosecution under the ESA for the incidental taking of those
3 species. The Tribe explains that, in December 2022, NMFS released a biological
4 opinion addressing its proposed issuance of an incidental take permit for
5 implementation of the DB HCP. Record 3849, 4048-49. The Tribe explained to
6 the county that USFWS and the Bureau of Reclamation are subject to a notice of
7 federal litigation in which the plaintiff contends that those federal agencies have
8 failed to ensure that the DB HCP conservation measures will not jeopardize the
9 continued existence of the Oregon spotted frog.' Record 654-56. The Tribe
10 argued to the county that it should consider the DB HCP and the threatened
11 litigation as related to Thornburgh's proposal.10 Record 656.
12 Ti- board found that the no net loss standard did not require ODFW and
13 the Tribe's concurrence and concluded that Thornburgh's expert reports provided
14 credible, substantial evidence that the 2022 FWIVIP satisfies the no net loss
15 standard. The board approved the 2022 FWMP as a modification of the FMP.
16 These appeals followed.
' The Tribe argued to the county that the plaintiff in that litigation, the Center
for Biological Diversity, is improperly focused on the spotted frog in isolation.
Record 656.
10 As explained further below, Bishop argues that the county erred by failing
to consider the DB HCP impact on baseline flows.
Page 14
I III. MOTIONS TO TAKE OFFICIAL NOTICE
2 Our review is generally limited to the record. ORS 197.835(2)(a).
3 However, we may take official notice of relevant law as defined in ORS 40.090.
4 A motion for official notice must explain the relevance of the document to an
5 issue in the appeal and the authority for taking notice under ORS 40.090. OAR
6 661-010-046; Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians
7 v. City of Coos Bay, Or LUBA (LUBA No 2020-012, May 4, 2021). We
8 have no authority to take official notice of facts for an "adjudicative purpose,"
9 that is, "to provide evidentiary suppoit or countervailing evidence with respect to
10 an applicable approval criterion that is at issue in the challenged decision."
11 Tualatin Riverkeepers v. ODEQ, 55 Or LUBA 688, 692 (2007) (citing Friends
�•__.__._. nn LUBA inn inaTnd l)• sve
12 of Deschutes County v. Deschutes counv--, 49 Orz.UBA =vv, =vim V- (005J„
13 also Home Builders Assoc. v. CioJ of Wilsonville, 29 Or LUBA 604, 606 (1995).
14 Petitioners Gould, the Tribe, and Central Oregon Landwatch (COLW), and
15 Intervenors -Petitioners Bishop and Lipscomb (collectively, petitioners) argue
16 that we may take official notice of three Oregon Water Resources Department
17 (OWRD) orders as decisional law and official acts of a state agency. ORS
18 40.090(1), (2). Petitioners argue that we may take official notice of a Marion
19 County Circuit Court order as decisional law. Petitioners explain that the purpose
20 of the requested consideration of those OWRD orders and circuit court order is
21 to establish Thornburgh's lack of access to and inability to distribute certain water
22 rights.
Page 15
I Thornburgh objects to the motion and argues that petitioners rely on the
2 OWRD and circuit court order for an adjudicative purpose --namely, to provide
3 evidentiary support for petitioners' argument that water is unavailable. We agree
4 with Thornburgh that petitioners request that we take official notice of the orders
5 for an impermissible adjudicative purpose. The motion is denied with respect to
6 the orders.
7 Petitioners argue that we may take official notice of two county ordinances
8 as official acts of the county. ORS 40.090(7). Petitioners explain that the
9 ordinances describe the state of the law that applied to Thornburgh's CMP in
10 2015 and support Gould's argument that the CMP is void as uninitiated.
11 Thornburgh moves that we take official notice of Deschutes County
12 Connprehensive Plan section 2.5 and DCCP Policies 2.5.12. and 2.5.22 as relevant:
13 to Thornburgh's response to the Tribe's arguments regarding those provisions.
14 These motions are unopposed and are granted.
15 I.V. MOTIONS TO STRIKE
16 Thornburgh moves to strike portions of briefs submitted by Gould,
17 Lipscomb, Bishop, and COLW because Thornburgh argues that those arguments
18 rely on facts not supported by evidence in the record and that petitioners
19 attempted to introduce the facts through their motion to take official notice.
20 Petitioners respond that we should deny the motion to strike because the
21 facts about the unavailability of the referenced water rights are already
22 established in the record and petitioners' briefing included citations to the record.
Page 16
I Petitioners argue that petitioners' briefing relies on the orders in petitioners'
2 motion to take official notice only to establish the status of the law as to the water
3 rights. Joint Response to Motion to Strike 3-4.
4 We need not resolve the parties' detailed dispute about the characterization
5 of petitioners' arguments because we agree with petitioners that many of the facts
6 that they reference in their arguments are based on citations to evidence that is
7 already in the record. Accordingly, we will not strike specific portions of
8 petitioners' briefs. Thornburgh's motion to strike is denied. However, consistent
9 with our scope of review and our ruling denying petitioners' motion to take
10 official notice of the orders, we will not consider any arguments that rely solely
11 on documents not in the record to establish any fact. Similarly, we will not
12 consider citations to the orders as support for any argument.
13 Petitioners move to strike portions of two of the intervenor -respondents'
14 briefs that incorporate by reference portions of the other intervenor -respondents'
15 briefs because the incorporation by reference results in. the briefs exceeding the
16 allowed length. We issued an order permitting Thornburgh to file three
17 overlength briefs not to exceed 15,000 words each. Thornburgh filed three briefs
18 with the following word counts: 10,594, 12,197, and 13,982. None of the three
19 briefs exceed the word limits that LUBA permitted. LUBA will consider all the
20 arguments in the intervenor -respondents' briefs. Accordingly, it would be
21 meaningless to our review for us to strike any portion of any one of those briefs
22 that exceed the 15,000-word limit due to incorporation by reference. Central
Page 17
I Oregon Landwatch v. Deschutes Count), Or LUBA (LUBA Nos
2 2023-006/009, July 28, 2023) (slip op at 9). Petitioners' motions to strike are
3 denied.
4 V. 1855 TREATY RIGHTS
5 (Tribe First Assignment of Error)
6 The Tribe argues that the decision improperly construes applicable law by
7 failing to address whether the 2022 FWMP violates the Treaty with the Tribes of
8 Middle Oregon, dated June 25, 1855 (1855 Treaty). Record 4308-18 (copy of the
9 1855 Treaty). Under the provisions of the 1855 Treaty, the Tribe ceded their
1.0 traditional lands to the United States, and reserved what became the Warm
11 Springs Reservation. The Tribe also reserved the exclusive right to take fish "in
1 11 4L.,. 4.,,,r+.,.,.., ' g through d bo �• ng [che Warta, Cpr" "'gs Reservation]" and
1/1 the streams runniAl LiU Cal ULt771 and "%j IiAl {1 4 Warm V 1A Reservation]"
Y
13 the right to take fish at "all other usual and accustomed stations." 1855 Treaty,
14 Art 1; Record 4309.
15 "[T]he Tribe asserts that its treaty -reserved rights would be impaired
16 because groundwater pumping proposed in the 2022 FWMP would
17 negatively impact habitat for MCR steelhead and hamper habitat
18 conditions that support a traditional fishery and the reintroduction
19 of the threatened species in the upper Deschutes Basin, including the
20 Whychus Creek and the Crooked River." Tribe's Petition for
21 Review 28.
22 The Tribe argues that the county improperly failed to consider whether approval
23 of the proposed 2022 FWMP violates the fishing clause in the 1855 Treaty.
24 Tribe's Petition for Review 27 ("The Decision misconstrues the 1855 Treaty by
Page 18
I failing to acknowledge it whatsoever, and thereby failing to assess whether the
2 2022 FWMP violates the Treaty by impairing the Tribe's right to have fish to
3 take."). The Tribe argues that the county erred by not evaluating whether the
4 approved change in the 2022 FWMP will impair the Tribe's treaty fishing rights.
5 We understand the Tribe to argue in their petition for review that the 1855 Treaty
6 fishing right is an applicable criterion to the county's land use decision.
7 In their reply brief, the Tribe argues that "the proper application of DCC
8 18.113.070(D) required the [board of commissioners] to consider whether the
9 2022 FWMP violates the fishing clause of the 1855 Treaty." Tribe's Reply Brief
10 1. At oral argument, the Tribe's counsel stated that the Tribe is not asserting that
11 the 1855 Treaty is an applicable criterion. Rather, the Tribe's counsel argued, the
+ COnstAr e the no net loss standard of DCC 19.113.070(D)
1z couziLy was require �o ..��x��;u., �.��
13 in a manner that would not impair the Tribe's treaty rights. That argument is not
14 in the Tribe's petition for review and we do not address issues raised for the first
15 time in the reply brief or at oral argument. Crowley v. City of Hood River, 81 Or
16 LUBA 490, 498, rev'd and rem'd on other grounds, 308 Or App 44, 480 Pad
17 1007 (2020) (issues that are raised for the first time in a reply brief or at oral
18 argument do not provide an opposing party an adequate opportunity to respond).
19 However, even if we accepted that characterization of the issue as a refinement
20 of the argument in the Tribe's petition for review, we agree with Thornburgh that
21 issue was not raised during the local proceeding and was therefore waived, as
22 explained below.
Page 19
1
2
3
4
5
6
7
8
9
10
11
13
14
15
16
17
18
19
20
21
22
23
24
Thornburgh does not dispute that the county did not snake any findings
regarding whether and how the resort development, including water consumption
and mitigation under the 2022 FW P, would impact the Tribe's treaty fishing
rights. Thornburgh responds, initially, that the Tribe did not present that issue to
the county and, thus, the Tribe has not preserved the issue for our review. We
agree.
LUBA is an administrative agency, part of the executive branch, and
entirely a creature of statute. Our review authority is prescribed, and limited, by
those statutes, particularly the scope of review set out in ORS 1.97.835. ORS
197.835(3) requires that issues before LUBA on review "shall be limited to those
raised by any participant before the local hearings body as provided by ORS
1 A7, 195 ni 197.797; whichever is applicable:" ORS 197:797M. in turn, requires
that:
"An issue which may be the basis for an appeal to [LUBA] shall be
raised not later than the close of the record at or following the final
evidentiary hearing on the proposal before the local government.
Such issues shall be raised and accompanied by statements or
evidence sufficient to afford the governing body, planning
commission, hearings body or hearings officer, and the parties an
adequate opportunity to respond to each issue."
The "raise it or waive it" principle does not limit the parties on appeal to
the exact same arguments made below, but it does requite that the issue be raised
below with sufficient specificity so as to prevent "unfair surprise" on appeal.
Boldt v. Clackamas County, 21 Or LUBA 40, 46, aff'd, 107 Or App 619, 813 P2d
Page 20
1 1078 (1991); Friends of Yrnnhill County v. Yainhill Count), Or LUBA
2 (LUBA No 2021-074, Apr 8, 2022), aff'd, 321 Or App 505 (2022), rev den, 370
3 Or 740 (2023) (slip op 6). A particular issue must be identified in a manner
4 detailed enough to give the governing body and the parties fair notice and an
5 adequate opportunity to respond. Boldt, 21 Or LUBA at 46. When attempting to
6 differentiate between "issues" and "arguments," there is no "easy or universally
7 applicable formula." Reagan v. City of Oregon City, 39 Or LUBA 672, 690
8 (2001).
9 In their preservation statement in the petition for review, the Tribe states:
10 "The Tribe has preserved this error by raising its 1855 Treaty -
II reserved rights to take fish throughout the Deschutes Basin and its
12 accompanying right to fish habitat protection in multiple comments
13 submitted by Austin Smith, Jr., the General Manager of the Tribe's
14 Branch of Natural Resources [(Smith)]. See, e.g., Record] 4297,
15 654 n 3." Tribe's Petition for Review 20-21.
16 Both Record 4297 and Record 654 n 3 discuss treaty rights to harvestable
17 fish, but neither document asserts that the county is required to find that its
18 decision will not harm the Tribe's treaty rights or that the county must apply the
19 no net loss standard in concert with the treaty rights. See Record 4297
20 ("Importantly, the Tribe's legally protected treaty -reserved rights to take fish
21 throughout includes a right to have fish to take."); Record 654 n 3 ("The Tribe is
22 a governmental co -manager of the Deschutes Basin and possesses significant
23 sovereign, cultural and treaty -reserved interests in the Basin. The Tribe has
Page 21
I legally protected treaty -reserved rights to take fish throughout, which include a
2 right to have fish to take.").
3 In their reply brief, the Tribe states that the county and the "parties had fair
4 notice that Tribe asserted that the fish resources affected by the 2022 FWMP are
5 protected by the 1855 Treaty." Tribe's Reply Brief 1 (citing Record 4300-02).
6 The Tribe also cited those record pages in its petition for review. Tribe's Petition
7 for Review 16. Those pages include statements from Smith, (1) asserting that the
8 Tribe is a co -manager that the county must consult and obtain approval from for
9 the 2022 FWMP, and (2) arguing that the county failed to adequately consult with
10 the Tribe. For example, Smith stated:
11 "The fishery resource needs stream temperature restoration within a
12 specified time period, the achievement of which is uncertain and
13 based on assumptions that pertain to decisions like the one facing
14 the County with the Resort's proposal. It is therefore imperative that
15 the County ensure that there is no disagreement about the Resort's
16 no net loss or degradation impact over this specified time period
17 with the fishery co -managers." Record 4300.
18 "It is widely acknowledged that the Tribe is a co -manager of the
19 fishery resources in the basin. The resource therefore includes
20 Tribally -managed resources including the Tribe's treaty -reserved
21 rights to fish which includes the necessary habitat to support the
22 fisheries. The Tribe is the sole manager that can evaluate impacts to
23 its treaty -reserved fisheries resource. Neither the County, [CDFW],
24 USFWS, NMFS or any other entity has the expertise or knowledge
25 to evaluate how habitat degradation affects or causes loss to this
26 resource and its cultural and subsistence significance to the Tribe."
27 Record 4301.
Page 22
I The Tribe does not point to any passage in the record where any party
2 raised the issue that the Tribe has raised in their petition for review, that the
3 county is independently required to evaluate whether the approved change to the
4 FWMP will impair the Tribe's treaty fishing rights and to affirmatively find that
5 the Tribe's treaty rights will not be impaired by the decision. We agree with
6 Thornburg that the issue is waived.
7 The Tribe's first assignment of error is denied.
8 VI. DUE PROCESS AND COORDINATION OBLIGATION
9 (Tribe Third Assignment of Error)
10 The Tribe argues that the county violated the Tribe's due process rights
11 under the Fifth Amendment of the United States Constitution by failing to
12 provide the Tribe with a rn AJAI%'t Cv^py of the notice of application or the notice of
13 hearing before the hearings officer•. i i Thornburgh responds, initially, that the
14 Tribe did not raise that issue to the county and, thus, the Tribe has not preserved
15 it for our review. We agree.
16 Under ORS 197.835(9)(a)(B) a procedural error may be a basis for remand
17 where it "prejudiced the substantial rights of the petitioner." The substantial
18 rights of petitioners include "an adequate opportunity to prepare and submit their
19 case and a full and fair hearing." Muller v. Polk County, 16 Or LUBA 771, 775
i l In their reply brief, the Tribe asserts that the county violated the Tribe's
rights under the Fourteenth Amendment of the United States Constitution. We do
not consider or resolve issues raised for the first time in a reply brief.
Page 23
1 (1988). The Tribe argues that the county's failure to provide the Tribe mailed
2 notice of the notice of application or the notice of hearing before the hearings
3 officer prejudiced their ability to create a record before the hearings officer and
4 allowed inadequate time for the Tribe to present evidence in response to the
5 highly technical and complex scientific reports submitted by Thornburgh's
6 experts. The Tribe argues that any prejudice was not cured by the fact that the
7 board of commissioners reviewed the matter in a de novo proceeding.
8 LUBA has long held that a party asserting a procedural error must
9 demonstrate that the procedural error was objected to during the proceedings
10 below if there was opportunity to lodge an objection. Torgeson v. City of Canby,
11 19 Or LUBA 511, 519 (1990); Dobaj v. Beaverton, 1 Or LUBA 237, 241 (1980).
12. This obligati.oja to object to procedural errors overlaps with, but exists
13 independently of, ORS 197.797(1) and 197.835(3). Confederated Tribes v. City
14 of Coos Bay, 42 Or LUBA 385, 392-93 (2002); Simmons v. Marion Counl)�, 22
15 Or LUBA 759, 774 n 8 (1992). While the "raise it or waive it" requirement at
16 ORS 197.797(1) has a similar purpose to the requirement that a party with an
17 opportunity to object to a procedural error must do so to seek remand based on
18 that error, the two requirements share no antecedents and otherwise have no
19 relationship with each other. McCaff •ee v. Coos Count}, 79 Or LUBA 512, 517,
20 aff'd, 299 Or App 521, 449 P3d 594 (2019), rev den, 366 Or 205 (2020). We have
21 explained that preservation of a claim of a constitutional violation "would at a
22 minimum entail citing the constitutional provision or at least making an argument
Page 24
I based on the substance of the constitutional provision that would give fair notice
2 that the petitioner['s] claim was based on the constitutional provision." Bundy v.
3 Cite of West Linn, 63 Or LUBA 113, 121 (2011).
4 The Tribe does not point to any part of the record where the Tribe asserted
5 a due process violation or objected to the county not providing the Tribe mailed
6 notice of the application or notice of the hearing before the hearings officer. In
7 their preservation statement in the petition for review, the Tribe cites Record
8 pages 3847 to 4413 and 4302. Record pages 3847 to 4413 is 566 pages. We will
9 not search large ranges of pages to determine whether an issue is preserved for
10 review. Rosetivood Neighborhood Association v. City of Lake Oswego, Or
11 LUBA (LUBA No 2023-035, Nov 1, 2023) (slip op at 7-8); Central Oregon
12 Landwatch, Or LUBA at (Siip op at 5S J; TT77i7 PrG'x'?or"ties, I.LC »,
13 Deschutes County, 80 Or LUBA 528, 532-33 (2019).
14 Record 4302 is a page of a January 31, 2023, letter from Smith, stating that
15 Thornburgh and the county failed to consult the Tribe and that the Tribe did not
16 have adequate time to evaluate the "extensive technical record." Smith does not
17 assert any right to mailed notice or any constitutional due process violations.
18 In support of their due process argument, the Tribe also argues that it is an
19 "affected agency" and "stakeholder" with whom the county failed to coordinate
20 in violation of Comprehensive Plan Policies 2.5.12 and 2.5,22. Tribe's Petition
21 for Review 45. Policy 2.5.12 is "Coordinate with stakeholders to protect and
22 enhance fish and wildlife habitat in river and riparian habitats and wetlands."
Page 25
I Policy 2.5.22 is "Coordinate with other affected agencies when a land use or
2 development application may impact river or riparian ecosystems or wetlands."
3 Thornburgh responds that this issue is also waived. The Tribe replies that
4 it stated below that the county had not "adequately consulted" the Tribe, citing
5 Record 4302. As explained above, the letter at Record 4302 states that
6 Thornburgh and the county failed to consult the Tribe. To the extent that the Tribe
7 cites the Comprehensive Plan policies to support its constitutional due process
8 argument, we conclude that issue is derivative of the due process issue and it is
9 waived for the reasons explained above.
10 If, instead, the Tribe means to allege an independent violation of
11 Comprehensive Plan Policies 2.5.12 and 2.5.22, we conclude that those issues are
12 also waived: The Tribe did not object to tlae county's procedure as violating those
13 policies. The general assertion that the county failed to adequately consult with
14 the Tribe is not sufficient to put the county on fair notice that Comprehensive
15 Plan Policies 2.5.12 and 2.5.22 were implicated or that the Bounty's procedure
16 violated those policies.
17 The issues raised in the Tribe's third assignment of error are waived. The
18 Tribe's third assignment of error is denied.
Page 26
0
I VII. NO NET LOSS STANDARD DCC 18.113.070(D)
2 (Tribe Second Assignment of Error; Bishop Assignments of Error)
3 The Tribe and Bishop argue that the county misconstrued the no net loss
4 standard and that the county's findings that the 2022 FWMP satisfies that
5 standard are inadequate and unsupported by substantial evidence.
6 We must defer to a governing body's plausible interpretation of its own
7 land use regulation. ORS 197.829(1); Siporen v. City of Medford, 349 Or 247,
8 243 P3d 776 (2010). A plausible interpretation is not "inconsistent with the
9 express language of the comprehensive plan or land use regulation" or
10 inconsistent with the underlying purposes and policies of the plan or regulation.
11 Id.
12 -[T]he plausibility deterrnind-tion under ORS 197.829(1) is not
13 whether a local government's code interpretation best comports with
14 principles of statutory construction. Rather, the issue is whether the
15 local government's interpretation is plausible because it is not
16 expressly inconsistent with the text of the code provision or with
17 related policies that `provide the basis for' or that are `implemented'
18 by the code provision, including any ordained statement of the
19 specific purpose of the code provision at issue." Kaplowitz v. Lane
20 Couny;, 285 Or App 764, 775, 398 P3d 478 (2017) (emphasis in
21 original).
22 Generally, findings must (1) address the applicable standards, (2) set out
23 the facts relied upon, and (3) explain how those facts lead to the conclusion that
24 the standards aremet. Heiller v. Josephine County, 23 Or LUBA 551, 556 (1992).
25 Findings must address and respond to specific issues relevant to compliance with
26 applicable approval standards that were raised in the proceedings below. Norvell
Page 27
I v. Portland Area LGBC, 43 Or App 849, 853, 604 P2d 896 (1979). "While a local
2 government is required to identify in its findings the facts it relies upon in
3 reaching its decision, it is not required to explain why it chose to balance
4 conflicting evidence in a particular way, onto identify evidence it chose not to
5 rely on." Moore v. Clackamas Count;, 29 Or LUBA 372, 380 (1995).
6 Substantial evidence is evidence that a reasonable person would rely on in
7 making a decision. Dodd v. Hood River County, 317 Or 172, 179, 855 P2d 608
8 (1993). A finding of fact is supported by substantial evidence if the record,
9 viewed as a whole, would permit a reasonable person to make that finding.
10 Younger v. City of Portland, 305 Or 346, 360, 752 P2d 262 (1988). In reviewing
11 the evidence LUBA may not substitute its judgment for that of the local decision
12 maker, Rather, I.,UBA must consider all the evidence to which it is directed, and
13 determine whether based on that evidence, a reasonable local decision maker
14 could reach the decision that it did.1d.
1.5 A. Preservation — The 1855 Treaty and ORS 197.460
16 The Tribe argues that the board of commissioners misconstrued the no net
17 loss standard in DCC 18.113.070(D) by concluding that the 2022 FWMP satisfies
18 that standard without expressly finding that the 2022 FWMP does not violate
19 either the 1855 Treaty or ORS 197.460, the latter of which requires that counties
20 "ensure that a destination resort is compatible with the site and adjacent land
21 uses" by retaining "[i]mportant natural features, including habitat of threatened
Page 28
1 or endangered species, streams, rivers and significant wetlands." ORS
2 197.460(1).
3 Thornburgh responds, initially, that those issues are waived because no
4 party argued below that DCC 18.113.070(D) must be construed in concert with
5 the 1855 Treaty and ORS 197.460, or that those laws provide applicable criteria
6 for the challenged decision.
7 The Tribe's preservation statement for the second assignment of error
8 states that the issues therein were raised. in written comments submitted by Smith
9 in the letters dated January 31, 2023, March 1, 2023, and March 8, 2023, citing
10 Record pages 3847 to 4413, 1817 to 1822, and 653 to 656. Tribe's Petition for
11 Review 30. In particular, the Tribe relies on Smith's statement concluding that
12 the proposed 2022 F VvTl'v'li was not likely and reasonably certain to comply with
13 DCC 18.113.070(D). Id. (citing Record 1818).
14 We explained above that the issue of the applicability of the 1855 Treaty
15 as approval criteria and as context for the county's construction of DCC
16 18.113.070(D) were not raised below and were waived. We conclude the same
17 under the second assignment of error for the same reasons explained above.
18 With respect to ORS 197.460, in the petition for review, the Tribe argues
19 that the issue was raised below sufficiently to provide the county and Thornburgh
20 fair notice because the Tribe explained that the 2022 FWIVIP implicated the
21 habitat of several endangered fish species, citing Record pages 3847 to 4413, 566
22 pages, and Record 1817 to 1822, and Record 653 to 656. Tribe's Petition for
Page 29
I Review 30. As explained above, we will not search large ranges of pages to
2 determine whether an issue is preserved for review.
3 In its reply brief, the Tribe provides a more focused citation directing us to
4 two pages within the 566-page range identified in its petition for review and
5 points to its initial comment letter at Record 4298 to 4300, in which the Tribe
6 explained that the resort's consumptive use of water and the 2022 FWMP impact
7 the habitat of multiple species listed as threatened and endangered. In Rosewood
8 Neighboi-hoodAssociation, we explained that OAR 661-010-0030(4)(d) requires
9 that "[e]ach assignment of error must demonstrate that the issue raised in the
10 assignment of error was preserved during the proceedings below," or explain why
I 1 preservation is not required. Or LUBA at __. (slip op at 5). OAR 661-010-
12 0030(4)(d) requires the petitioner to demonstrate preservation in the petition for
13 review. Our rules do not allow a petitioner to demonstrate preservation for the
14 first time in a reply brief. That is so because such an approach is, in effect, an
15 unauthorized amendment of the petition for review. More importantly, such an
16 approach also prejudices the responding party's substantial rights where
17 preservation is disputed, because at the point in the adversarial proceeding that a
18 reply brief is filed, the responding party has already filed their responsive brief
19 and has no further opportunity to dispute a demonstration of preservation
20 contained in a reply brief. Rosewood Neighborhood Association, Or LUBA
21 at (slip op at 9-10).
Page 30
I Even if the Tribe were permitted to supplement its preservation statement
2 in the reply brief, the Tribe's explanation, at Record 4298 to 4300, that the
3 resort's consumptive use of water and the 2022 FWMP impact the habitat of
4 multiple species listed as threatened and endangered is insufficient to provide fair
5 notice to the county and Thornburgh of what the Tribe now alleges, which is that
6 ORS 197.460 provides criteria for the challenged decision or context for the
7 county's application of DCC 18.113,070(D).
8 Record 653 to 656 discusses the DB HCP and describes related threatened
9 litigation and an incidental take permit for the DB HCP for bull trout and the
10 spotted frog. The Tribe argued that both the DB HCP and related ligation are
11 related to the 2022 FWMP and should be considered by the county. Nothing in
12 those pages cites ORS 197.460 or makes any argument based on the substance of
13 that statute sufficient to alert the county and Thornburgh that the Tribe is alleging
14 that statute provides criteria for the challenged decision or context for the
15 county's application of DCC 18.113.070(D).
16 Similarly, Smith's statement at Record 1818 concluding that the proposed
17 2022 FWMP was not likely and reasonably certain to comply with DCC
18 18.113.070(D) is insufficient to raise the issue that the decision violates ORS
19 197.460. That statement does not cite ORS 197.460 or make any argument based
20 on the substance of that statute sufficient to provide fair notice to the county and
21 Thornburgh that the Tribe is alleging that ORS 197.460 provides criteria for the
Page 31
I challenged decision or context for the county's application of DCC
2 18.113.070(D).
3 The issues the Tribe raises in their second assignment of error arguing that
4 the decision violates the 1855 Treaty and ORS 197.460 are waived.
5 B. The Tribe's Co -manager Status, Indigenous Knowledge, and
6 Evidence
7 The Tribe argues that the county's decision that the no net loss standard is
8 met is not supported by substantial evidence in the whole record because the
9 county failed to consider the Tribe's governmental co -manager status and its
10 indigenous knowledge and supporting evidence, and that such evidence calls into
11 question the evidence that the county relied on to conclude that the no net loss
12 standard was met.
13 The county found "[t]he technical expertise provided by Thornburgh's
14 team is vast," and that
15 "Thornburgh's technical evidence was prepared by credentialed
16 experts who provided an extreme level of analysis and detail.
17 Additionally, Thornburgh's team of experts includes a
18 hydrogeologist with significant experience working in analyzing
19 waterways in the Deschutes Basin and hydrologists who have
20 completed water quality studies of the Deschutes River for private
21 and governmental clients, including the Tribe." Record 22.
22 In contrast, the county specifically found that the opponents generally did not
23 provide any technical evidence that refuted Thornburgh's technical evidence.
24 Record 21-22. The county also found that the Tribe provided no expert testimony
Page 32
1 on water quality and modeling, water rights and mitigation, and fish and fish
2 habitat. Record 22-23.
3 The Tribe argues that the decision is not supported by substantial evidence
4 because the board of commissioners "categorically exclude[d] the Tribe[']s
5 indigenous knowledge regarding the management of Deschutes Basin fisheries."
6 Tribe's Petition for Review 38-39. The Tribe argues that "[t]he Decision appears
7 to contain implicit cultural bias predicated on the antiquated notion that graduate
8 school-credentialed expertise is the only type of expertise that can or should be
9 considered in connection with natural resource planning and management." Id. at
10 39. The Tribe argues that implicit bias led the county to fail to meaningfully
I l address the issues that the Tribe raised in its testimony to the county, including
12 the Tribe's concerns that the resort water consumption under- the 2022 s WMP
13 may conflict with other fish habitat protection plans and, thus, impair fish habitat,
14 and the Tribe's concern about Thornburgh's experts' water modeling
15 assumptions, specifically the models being based on a 2016 hydrological year.
16 The Tribe explains that "The Tribe and its members are a `salmon people'
17 for whom fishing is `not much less necessary to [their] existence X X X than the
18 atmosphere they breathe[]. "' Tribe's Petition for Review 1(quoting United States
19 v. Winans, 198 US 371, 381, 25 S Ct 662, 49 L Ed 1089 (1905) (brackets and
20 ellipses in original)). LUBA respects the Tribe's sovereignty and role as a
21 governmental co -manager of Deschutes Basin natural resources, including fish
22 resources. LUBA also acknowledges the fact that fish and fish habitat are central
Page 33
1 to the Tribe's historical, present, and future subsistence and cultural identity and
2 that the Tribe's fishing rights are protected under the 1855 Treaty. However, the
3 Tribe does not identify any evidence in the record concerning fish or fish habitat
4 that is based on the Tribe's indigenous knowledge and that contradicts the
5 evidence on which the county relied.
6 The testimony in the record that the Tribe points to is primarily related to
7 the DB HCP. The Tribe does not identify any evidence in the DB HCP that is
8 based on indigenous knowledge. The county's decision demonstrates that the
9 county considered the Tribe's testimony and weighed the Tribe's testimony
10 against Thornburgh's evidence. We understand the Tribe to argue that the county
11 should have weighed the Tribe's testimony, concerns, and critique more heavily
12 given the Tribe's co -manager status and indigenous knowledge. Xt .0 not our role
13 to reweigh the evidence. 1000 Friends of'Oregon v. Manion Count), 116 Or App
14 584, 587-88, 842 P2d 441 (1992). The Tribe has not established that, even if the
15 Tribe's testimony below were given additional weight based on the Tribe's co-
16 manager status and indigenous knowledge, a reasonable person would not rely
17 upon the evidence that the county relied upon when looking at the record as a.
18 whole. Younger, 305 Or at 360.
19 C. ODFW Critique of the 2022 FWMP
20 The Tribe also argues that the county's decision that the no net loss
21 standard is met is not supported by substantial evidence in the whole record
22 because the county failed to give appropriate weight to ODFW's expertise and
Page 34
I concerns regarding the 2022 FWMP. The Tribe argues that, given the history of
2 this case and ODFW's involvement in and agreement with the 2008 FWMP, the
3 no net loss standard cannot be satisfied without ODFW approval of the 2022
4 FWMP.
5 ODFW staff were significantly involved in the review of the 2022 FWMP,
6 both in communication with Thornburgh's experts and in providing comments to
7 the county. ODFW did not agree with Thornburgh that the 2022 FWMP satisfies
8 the no net loss standard. Record 1823-32. ODFW generally recognized
9 Thornburgh's experts' modeling methods as acceptable and based on best
10 methods and practices, particularly the use of the modeling tools 2017 USGS
11 GSFLOW and QUALM-w. Record 1828. However, ODFW criticized the
12 modeling process and results because the model inputs rely on "unsubstantiated
13 assumptions of past water use," and ODFW questioned whether the
14 environmental baseline for basin conditions was accurate given that the baseline
15 conditions were "determined solely and independently by [Thornburgh's]
16 consultant team," as opposed to in concert with other fish and habitat resource
17 managers and regulators such as ODFW and the Tribe. Record 1824.
18 ODFW pointed out that some of the model inputs for baseline water
19 quantity and quality, which rely on the 2016 hydrological year, are inconsistent
20 with actual observed stream conditions in 2016. Record 1829-30. ODFW also
21 criticized Thornburgh's modeling as backwards because Thornburgh's experts
22 ran the model based on water rights available for transfer instead of first modeling
Page 35
I the impacts of resort groundwater pumping and then identifying available
2 mitigation. Further, ODFW criticized Thornburgh's modeling for failing to
3 include reasonably foreseeable future impacts and conditions, including
4 reductions in aquifer levels and stream impacts from implementation of the DB
5 HCP. ODFW opined that the water rights that Thornburgh relied upon to provide
6 mitigation water under the 2022 FWMP were not sufficiently certain to result in
7 actual cold, wet water in stream to provide fish habitat. Further, in ODFW's view,
8 the 2022 MW does not contain sufficient monitoring and reporting
9 requirements to ensure that the mitigation plan will result in no net loss. Thus,
10 ODFW urged that the county to not approve the 2022 FWMP. Record 1831.
II The Tribe argues that, given ODFW's expertise, and the fact that the
�__ is A nr� z r� ter+ ;— ., .-.,•„ �; + ,e Al � F �J�Ii��iD --FW's
comity r elleU upon "DF J� s agrees ens III uprI-V xng , � u., � , M , .�M
13 concurrence was required for the county to approve the 2022 FWMP and that, in
14 light of ODFW's criticisms, the county's finding that the 2022 FWMP satisfies
15 the no net loss standard is not supported by substantial evidence.
16 Thornburgh responds that Thornburgh's experts responded to ODFW's
17 criticisms and ODFW did not provide any biological evidence or habitat impact
18 assessment that contradicted Thornburgh's experts' opinions about impacts to
19 fish resources. Thornburgh acknowledges ODFW's criticism of the modeling
20 assumptions. However, Thornburgh emphasizes, ODFW did not submit any
21 independent analysis or evidence that the 2022 FWMP would result in a net loss
22 of fish habitat. Thornburgh argues that the closest ODFW comes is ODFW's
I opinion that, in the absence of evidence that the water nights relied upon have
2 historically been used in full, the 2022 FWMP model overestimated the benefit
3 of mitigation from water rights transfers and, thus, once the resort starts using
4 water, "more water will be leaving the system * * * than is leaving the system
5 now, yielding a potential net loss to the system and potential impacts to resources
6 that are currently utilizing that habitat." Record 1828.
7 The Tribe does not point to any applicable standard that requires
8 Thornburgh to demonstrate that ODFW concurs with the 2022 FWMP. While
9 ODFW's concurrence with the 2008 FWMP influenced the county's decision that
10 the 2008 FWMP satisfied the no net loss standard, nothing cited to us compels
I I the county to find ODFW concurrence as a prerequisite for approving the 2022
12 FWMP. The county considered ODF W's comments and criticisrris and
13 nevertheless concluded that the 2022 FWMP will satisfy the no net loss standard.
14 ODFW's testimony may contain legitimate criticisms of the 2022 FWMP but
15 ODFW's criticisms do not so undermine Thornburgh's experts' analyses and
16 conclusions so that a reasonable person could not rely upon them in the absence
17 of biological evidence or habitat impact assessments contradicting Thornburgh's
18 experts' opinions about specific predicted impacts to fish resources and efficacy
19 of the proposed mitigation.
20 D. Baseline Habitat Conditions
21 As noted above, DCC 18.113.070(D) requires substantial evidence that
22 "[a]ny negative impact on fish and wildlife resources will be completely
Page 37
I mitigated so that there is no net loss or net degradation of the resource." On
2 appeal of the 2008 FWMP approval, the Court of Appeals concluded that
3 "`fish and wildlife resources' refers not to species of fish and
4 wildlife, but to the habitat that supports fish and wildlife. * X X That
5 standard may be satisfied by a plan that will completely mitigate any
6 negative impact on the habitat that supports fish and wildlife,
7 without showing that each individual species will be maintained or
8 replaced on a one-to-one basis." Gould, 233 Or App at 633-34.
9 The court observed that "[t]he parties seem to agree that DCC 18.113.070(D)
10 requires, first, an assessment of fish and wildlife resources before development
11 and, second, mitigation to make up for negative impacts caused by development."
12 Id. at 631.
13 Bishop argues that the board of commissioners misconstrued the no net
14 loss sta ndard by refusing to consider existing habitat conditions and foreseeable
15 impacts from other uses. The county found:
16 "Many of the arguments and issues related to Thornburgh's 2022
17 FWIVIP are related to drought and regional well decline. Opponents
18 assert that these are relevant issues and should lead to denial. We
19 disagree. The No Net Loss Standard requires a resort to mitigate its
20 own impacts, not the cumulative impacts of drought or other basin-
21 wide water policy and management issues. The No Net
22 Loss/degradation test is limited to addressing potential negative
23 impacts of resort development. Impacts to habitat caused by other
24 persons or environmental conditions are not attributable to
25 Thornburgh's use of water or the impacts of Thornburgh's use.
26 "Thornburgh has quantified its impacts on water quality and
27 quantity and the locations where these impacts will occur. It has
28 studied waterway conditions in a typical year, and it has also
29 provided expert evidence that shows the benefits of mitigation are
I enhanced during periods of drought. This approach properly
2 accounts for issues of drought and the low flow conditions
3 opponents argue make the results of Thornburgh's expert analysis
4 of aquatic habitat unreliable.
5 "Opponents, ODFW, and the Tribe have also raised issues that
6 pending litigation regarding flow requirements and the [DB HCP]
7 related to the Spotted Frog may lead to additional constraints on live
8 flows. These issues are outside of the scope of the Thornburgh's
9 impacts and Thornburgh is not required to mitigate for them.
10 Thornburgh must mitigate for its impacts, alone. Further,
11 Thornburgh's plan relies primarily upon groundwater water sources,
12 and its technical analysis shows that the 2022 FWMP will result in
13 increased surface flows which are beneficial to fish and wildlife.
14 Thornburgh has also provided expert testimony that its plan will not
15 result in negative impacts to the spotted frog, which we find
16 persuasive." Record 26-27.
17 Bishop argues that the county erred in approving the 2022 FWMP because
18 that plan improperly accounts only for Thornburgh's water use and no other
19 factors such as groundwater decline, drought, and changed flows resulting from
20 implementation of the DB HCP. We understand Bishop to argue that the 2016
21 hydrological year that Thornburgh's modeling relies on does not account for
22 those impacts to baseline water quantity, quality, and stream flow timing. Bishop
23 argues that the county's interpretation that omits outside habitat impacts fails to
24 accurately assess of baseline fish habitat conditions prior to assessing impacts
25 fiom resort development.
26 Thornburgh responds that Bishop has not established that the county's
27 interpretation is inconsistent with the text or policies of DCC 18.113.070(D).
28 Thornburgh contends that Thornburgh's experts completed an accurate baseline
Page 39
I habitat assessment. The Resource Specialists, Inc. (RSI) fish habitat assessment
2 is based on thermal data from 2016. Record 12739. No party argues that 2016 is
3 an atypical water year and Thornburgh points out that modeling includes models
4 for low -flow years, which show increased net benefit. Record 58. Thornburgh
5 argues that its modeling accounts for other existing water uses because the model
6 is based on actual stream flows and modeled groundwater pumping impacts to
7 those flows. Thornburgh acknowledges that analysis is limited to impacts based
8 on actual flows and does not analyze potential impacts from climate change,
9 drought, groundwater decline, or changed stream flows resulting from
10 implementation of the DB HCP. DeLashmutt Intervenor -Respondent's Brief 25.
11 However, Thornburgh points out that its modeling included an assumption of
12 Uecieaseu mitlgaLioi^i flows, `VVIA 1^1 still resulted in SutSsfylrig the no lief 1`.3aS
13 standard, Id..
14 With respect to the text of DCC 18.113.070(D), we understand Bishop to
15 argue that "any negative impact" cannot be accurately identified or "completely
16 mitigated" if the baseline for modeling impacts does not accurately reflect all the
17 factors influencing the habitat. Bishop argues that habitat modeling should
18 account for impacts to the stream system habitat that are identifiable, predictable,
19 measurable, and reasonably likely to occur, such as drought and changed flows
20 in response to DB HCP implementation. That is one plausible reading of DCC
21 18.113.070(D).
Page 40
I However, the county's interpretation is also plausible. In the county's
2 construction, "any negative impact" may be analyzed based on a baseline flow
3 that represents a typical water year. "Any negative impact" is measured only by
4 the resort's impact on the system. That interpretation is not expressly inconsistent
5 with the language of DCC 18.113.070(D) or the underlying policy —which is to
6 hold a proposed resort accountable to completely mitigate the resort's impacts so
7 that there is no net loss of fish resources.
8 We do not understand any party to argue that no reasonable person could
9 conclude that the 2016 hydrological year is a typical water year. Instead, we
10 understand Bishop to argue that the baseline flows based on the 2016
11 hydrological year are reasonably likely to change in the future due to groundwater
12 decline, changing climate conditions, and implementation of the DB HCP. `wn%e
13 do not understand that those purported changes are quantified or modeled
14 anywhere in the record in relationship to Thornburgh's water use.12 We
12 As quoted above, the county did not make any findings on whether, how,
or when the DB HCP might impact fish habitat because the county found that
Thornburgh was not required to address or mitigate for any changes in stream
flow due to the DB HCP. Bishop does not explain whether, how, or when the DB
HCP might impact fish habitat. The Tribe explained to the county that the DB
HCP "legally mandates a new water management regime over time which has
not been modeled." Record 1821. Bishop states that the DB HCP was
"finalized in 2020, [and] is a habitat -focused plan to support and
enhance seasonally and life -stage dependent species throughout the
Deschutes Basin, for example, through mandated instream flow
regimes at times and locations that affect instream flow availability
Page 41
I understand Bishop to argue that Thornburgh's experts were required to model
2 those factors in assessing impacts and mitigation. However, potential and even
3 probable fixture changes and additional impacts do not make the county's
4 interpretation implausible.
5 E. System -wide Benefits
6 Bishop next argues that the county misconstrued the no net loss standard
7 by disregarding negative impacts on fish habitat in certain river stretches and then
8 balancing those negative impacts against predicted benefits in other stretches of
9 different rivers. Bishop points to the county"s findings that "while some minor
10 stretches of certain waterways may experience slightly decreased flows or
11 extremely minor increases in temperature, the evidence shows that o(v. erall the no
L net. 'loss Standard is met because of the extensive syst— -wide bent -fits." Record
and temperature among other water quality and habitat factors, The
DB HCP has materially altered the required seasonal streamflow in
Whychus Creek, the Deschutes River, and the Crooked River."
Bishop's Intervenor -Petitioner's Brief 6-7 (citing Record 4294-
4300, 4237-4260, 4271); see also Bishop Brief 47 ("Recent federal
approval of the DB HCP creates a legally binding management
regime under the federal ESA that currently is and will continue to
affect streamflow and habitat in streams affected by the resort.").
Bishop states that the DB HCP requires instream flow but does not explain
whether that requirement is currently effective and affecting streamflow or, if
not, when it will be implemented in the future. Moreover, Bishop does not point
to evidence in the record explaining how the current or future implementation of
the DB HCP undermines Thornburgh's experts' opinions.
��.. A 7
1 58. Bishop argues that this finding misconstrues the no net loss standard because
2 river and stream segments contain distinct habitat that are not interchangeable.
3 Thornburgh responds, and we agree, that Bishop's argument relies on a
4 single finding emphasized out of context. Thornburgh's modeling and analyses
5 separately assessed fish habitat in different river and stream segments. The only
6 purported negative impacts that remain after mitigation measures are in the
7 Crooked River, and those impacts were found to be "effectively zero." Record
8 59. The county found:
9 "In all cases, the changes in streamflow were minimal and the
10 change to temperature was positive at times and negative at other
11 times, but in all cases was effectively .zero. ODFW stated that the
12 modeling outputs are within range of model `noise,' particularly for
13 the Crooked River results. [Thornburgh's expert] Dr. Caldwell
14 assessed the impacts to the fisheries in the Crooked River and
15 concluded [that] the 2022 FWMP would provide net benefits to fish
16 habitat quality and quantity at all sites evaluated." Id.
17 Bishop acknowledges that the county found that impacts to the Crooked
18 River are "imperceptibly small and scientifically irrelevant," yet argues that
19 finding does not solve the flawed "system -wide" interpretation. Bishop's
20 Intervenor -Petitioner's Brief 24-25 (quoting Record 59). We agree with
21 Thornburgh that the county did not interpret the no net loss standard to allow
22 negative impacts in one stream segment so long as those impacts are balanced by
23 benefits elsewhere in the system. Accordingly, Bishop's interpretive argument is
24 based on an incorrect premise and provides no basis for remand.
Page 43
I F. Cancellation in Lieu of Mitigation (Voluntary Cancellation)
2 Bishop argues that the county misconstrued the no net loss standard by
3 concluding that Thornburgh can provide water right transfers or "cancellation in
4 lieu," rather than by legally protected instream water rights.
5 Thornburgh proposed to obtain and use the following water rights:
6 LeBeau, Certificate 95746, 200 AF (50 acres); Tree Farm, Certificate 94948,
7 327.5 AF (.453 cfs); Big Falls Ranch, Certificates 96190 and 96192, 614.4 AF
8 (153.6 acres); Big Falls Ranch, Certificate 87558, 25.6 AF (6.4 acres); and Dutch
9 Pacific, Certificate 89259, 49.5 AF (16.5 acres). Record 13565, Thornburgh
10 proposed using those quantities of water for (1) pumping and consumptive use at
11 the resort, (2) mitigation water to satisfy OWRD mitigation rules, and (3)
12 mitigation water for fish habitat to satisfy the no net loss standard." To those
13 As explained in greater detail in decisions involving the 2008 FWW, state
water law requires Thornburgh to mitigate the impacts from its groundwater
withdrawal to hydraulically connected surface waters in the Deschutes River
Basin. See Gould v. Deschutes County, 54 Or LUBA 205, 264-65, r•ev'd and
reni'd on other- grounds, 216 Or App 150, 171 P3d 1017 (2007); Gould v.
Deschutes County, 59 Or LUBA 435, 554-55 (2009), aff'd, 233 Or App 520,301
P3d 978 (2010). We refer to that mitigation as "OWRD mitigation," which is
governed by the OWRD Deschutes Basin mitigation rules at OAR 690-505-0610.
OWRD mitigation is related to but distinct from the fish mitigation plan that is
required to satisfy the county's no net loss standard. The same water that is used
to satisfy OWRD mitigation requirements may also supply fish habitat benefits.
However, a demonstration of compliance with the OWRD mitigation rules is not
sufficient to satisfy the no net loss standard because those requirements relate
only to the quantity of water in the system and not the quality of water, which is
critical for fish habitat. Gould v. Deschutes County, Or LUBA (LUBA
Page 44
I ends, the 2022 FWMP proposes three different water rights legal processes: (1)
2 transferring the water rights to the resort property so that the resort can withdraw
3 those quantities of water as groundwater from the resort wells; (2) transferring
4 the water rights to instream water rights; and (3) cancelling the water right in -lieu
5 of mitigation. The 2022 FWMP explains that "[c]ancelling a right is done as
6 mitigation and results in placing water back in the system by cancelling the legal
7 right to use the water at the original point of appropriation." Record 70.
8 The 2022 FWMP provides compliance measures that are different for
9 water appropriated from surface water versus groundwater or for mitigation
10 credit. For groundwater water rights
11 "compliance occurs upon the cessation of pumping, along with any
12 of the following: deed evidencing the transfer of ownership, a
13 submittal to OWRD of any of the following: (i) an assignment of the
14 water right to Thornburgh, (ii) an application that seeks OWRD
15 approval of a transfer to pump at the Resort property, or (iii) a
16 cancellation in -lieu of mitigation." Record 77."
17 For surface water rights, compliance occurs upon the cessation of pumping at
18 the point of diversion
19 "and OWRD issues a final order (or its equivalent) approving any
No 2021-112, June 9, 2022), affd, 322 Or App 571 (2022), rev den, 370 Or 827
(2023).
la Thornburgh states that evidence in the record demonstrates that it has
already complied with the 2022 FWMP for the Big Falls Ranch, Tree Farm, and
Dutch Pacific groundwater rights because Thornburgh owns those rights, has
ceased pumping all of them, and submitted applications to OWRD.
Page 45
I of the following: (i) an application that transfers to pump at the
2 Resort property, (ii) an application that transfers the water to an in-
3 stream lease, (iii) the cancellation in -lieu of mitigation, or (iv) an
4 application to transfer to obtain mitigation credits, permanent or
5 temporary." Id "
6 For mitigation cr-edits, compliance occurs when Thornburgh provides proof of
7 ownership or proof of submittal to OWRD to use the credits as mitigation.
8 Petitioners argued to the county that the only acceptable method to ensure
9 fish habitat mitigation water to meet the no net loss standard is transferring the
10 water rights to instreazn water rights and that cancelling the water right in -lieu of
11 mitigation could not satisfy the no net loss standard because the quantity of water
12 subject to cancellation could be "picked up" by junior water rights holders so that
13 quantity of water would not reliably be instream providing fish habitat, as
14 assumed by the 2022 FWMP. Bishop's Intervenor -Petitioner's Brief 28 (quoting
15 Record 54-55).
16 The county rejected that argument and concluded that Thornburgh may
17 rely on cancellation of a water right to mitigate for impacts to fish habitat. Record
18 29. The county found:
19 "OAR 690-505-0610 lists a number of methods to provide `legally
20 protected' water and does not provide that the only method of
21 protecting flows is through an instreazn water right; this includes
is Thornburgh states that evidence in the record demonstrates that the Three
Sisters Irrigation District mitigation project that was required by the 2008 FWMP
was completed in 2009. Thornburgh states that Thornburgh owns the LeBeau
water right and pumping has ceased at the original point of diversion.
1 `cancellation in lieu' as a potential method for protecting flows. The
2 flows restored by water right transfers may not be claimed by other
3 water users in the basin because new surface water rights are not
4 being issued in the Deschutes Basin, and the evidence shows no
5 party has been regulated off of a surface or groundwater right in the
6 basin.
7 "Further, the [board] finds that the evidence in the record related to
8 cancellation in lieu does not result in the ability of a junior holder to
9 `pick up' the water. The evidence shows the watermaster has not
10 regulated any groundwater or surface water rights off. This means
11 enough water exists for all water rights (not storage), even the junior
12 holders. OWRD accepts this method for mitigating groundwater
13 permit applications and the [board] finds that OWRD is the authority
14 and controlling agency over water law. The 2022 FWMP and its
15 extensive technical evidence shows that stream flows will increase
16 and temperatures decrease as a result of implementation of the 2022
17 FWMP. As such, we find that methods provided by the groundwater
18 mitigation program, including the methods relied upon by the 2022
19 FWMP, are sufficient to meet the no net loss standard." Record 54-
20 55.
21 OAR 690-505-0610(8) provides, in part:
22 "[I]f the impact of use under a ground water permit application is
23 completely offset by a proposed voluntary cancellation of an
24 existing ground water use subject to transfer, such that impact on
25 surface waters from the new ground water use is the same as, or less
26 than, impact on surface waters from the existing ground water use
27 subject to transfer, the ground water permit application may be
28 approved without additional mitigation once the proposed voluntary
29 cancellation is complete."
30 Bishop argues that the county erred in allowing Thornburgh to rely on
31 cancellation of water rights to provide fish habitat. In essence, Bishop argues that
32 a reasonable person could not conclude that cancellation of a water right will
33 provide water for fish habitat. Bishop argues that cancellation does not
Page 47
1 permanently protect the water proposed for cancellation from use by others
2 because that water can be used by other water rights holders pumping from the
3 same aquifer.
4 Thornburgh responds that the no net loss standard does not prescribe any
5 method of fish habitat mitigation or require that only instream water rights may
6 be relied upon. Thornburgh points out that Thornburgh's water rights expert,
7 Newton, opined that both transfer to an instream water rights and cancellation
8 will leave water in the system at the original pumping location because the
9 OWRD processes for transfer or cancellation ensure that the mitigation measure
10 is effective. Newton explained:
11 "All water rights that are proposed for transfer or voluntary
12 cancellation for use as mitigation for a new groundwater use are
13 required to be processed by the OWRD through the transfer or
14 voluntary cancellation process and dedicated to the new permit for
15 mitigation. During this administrative process with the OWRD, a
16 review is conducted by the OWRD as. to the reliability, more
17 specifically[: Have the water rights offered for mitigation been used
18 in their entirety, without being regulated off because of water
19 availability, and meet a reasonable review that similar water rights
20 are offered to offset the future impacts of the new groundwater
21 permit to be issued[?] During such a review by the OWRD, the water
22 right in question must be a certificated water right, suitable evidence
23 to prove use and availability will be questioned and investigated,
24 and a decision made regarding suitability for mitigation." Record
25 749.
26 As we understand it, the 2022 FWMP modeling assumes equal efficacy
27 and reliability as between instream water right transfers and voluntary
28 cancellation of water rights so that those legal processes have the same instrear
Page 48
1 impacts on water
quality and quantity. We agree with Thornburgh
that a
2 reasonable person
could conclude that voluntary cancellation of water
rights
3 consistent with the OWRD rules and the 2022 FWMP will result in improved fish
4 habitat to offset the negative impacts to fish habitat caused by Thornburgh's
5 groundwater pumping.16
6 G. OWRD Mitigation Rules
7 Bishop argues that the county "wholly and unreasonably" relies on
8 OWRD's mitigation rules to meet DCC 19.113.070(D). Bishop's Intervenor-
9 Petitioner's Brief 30. That argument mischaracterizes the county's decision. The
10 county concluded that voluntary cancellation is a reliable way to provide
11 mitigation water for fish habitat. The county based that conclusion on the fact
12 that OWRD is the state water regulator and O vvRD accepts voluntary
13 cancellation as a means of offsetting withdrawal impacts. The county does not
14 solely rely on the OWRD mitigation rules to satisfy the no net loss standard.
15 Instead, the county relies on the OWRD mitigation rules as evidence that
16 voluntary cancellation will result in the water quantity and quality modeled in the
17 2022 FWMP.
16 Later in this decision we agree with Bishop that the 2022 FWNIP
compliance measures that require only submittal to OWRD of applications for
transfers or cancellation of groundwater water rights are inadequate to ensure no
net loss of fish resources. See Or LUBA at (slip op at 64-65).
Page 49
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H. ORS 537.270
Bishop argues that the county improperly relied on ORS 537.270 to
support its conclusion that the water rights transfers and cancellations will result
in water in the stream for fish habitat. ORS 537.270 provides:
"A water right certificate issued in accordance with the provisions
of ORS 537.250 which, after the expiration of three months from the
date it is issued, has not been contested and canceled in the manner
provided in ORS 537.260, and a water right certificate, when issued
under ORS 539,140, shall be conclusive evidence of the priority and
extent of the appropriation therein described in any proceeding in
any court or tribunal of the state, except in those cases where the
rights of appropriation thereby described have been abandoned
subsequent to issuance of the certificate."
O7FW argued to the county that the water rights Thornburgh listed and
relied upon in the 2022 FWMP were not sufficiently reliable to meet the no net
loss standard because the record did not demonstrate that the full amount of water
under the water rights listed in the 2022 F WMP and relied upon for Thornburgh's
modeling "have been consistently used in full in the recent past." Record 1827.
The county rejected that argument and found that "Thornburgh has
provided substantial evidence of pumping records, aerial photos, [and] affidavits
of use for individual water rights that indicate substantial use and that rights will
provide actual benefits to impacted waterways." Record 30.
In addition, and in the alternative, the county found that none of the
identified water rights are subject to cancellation proceedings and Thornburgh is
entitled to rely upon water nights unless they are subject to cancellation
Page 50
I proceedings. Record 62. The county found that ORS 537.270 is a "relevant
2 consideration." Id..
3 "ORS 537.270 directly relates to whether certificated water rights
4 are evidence of water priority and appropriation or use. We find that
5 where Thornburgh has (or is planning to use) certificated or
6 permitted water that the amount of appropriation, duty and priority
7 govern here. We find that Thornburgh's water rights are `reliable'
8 for the purpose of complying with the No Net Loss Standard."
9 Record 30 (emphasis in original).
10 For purposes of this decision, we assume without deciding that the county
11 misconstrued ORS 537.270 and erred in concluding that statute creates a legal
12 presumption that Thornburgh's water rights certificates are conclusive evidence
13 of the availability of water for the purpose of complying with the county's no net
14 loss standard. However, Bishop has not established that error requires remand.
15 Where an error in a finding is not critical to the local government's ultimate
16 conclusions, the error does not provide a basis for reversal or remand. Hunt v.
17 City of the Dalles, 78 Or LUBA 509, 515 (2018), aff'd, 296 Or App 761, 438 P3d
18 489 (2019). The county's finding relying on ORS 537.270 was in addition, and
19 in the alternative, to the county's finding that Thornburgh provided substantial
20 evidence of pumping records, aerial photos, and affidavits of use for individual
21 water rights that indicate substantial use, and that rights will provide actual
22 benefits to impacted waterways. Thus, the county's error in applying an improper
23 presumption based on ORS 537.270 was harmless in that it was not necessary to
24 the approval.
Page 51
1 I. Water Rights Certificates as Evidence of Water Quantity
2 Bishop also argues that the county improperly relied on the listed water
3 rights as establishing the quantio) of water available for mitigation. In other
4 words, Bishop argues, certificated water rights are not substantial evidence that
5 the 2022 FVNW will result in no net loss to fish resources. The 2022 FWMP and
6 modeling rely on the quantity of water listed in the certificate. Bishop argues that
7 the no net loss standard requires a certainty greater than listing what is shown on
8 a paper certificate. Bishop argues "[i]f less water is in the aquifer or stream than
9 the amount listed in the [c]ertificate, water does not magically come into
10 existence to meet the amount listed in the [c)ertificate." Bishop's Intervenor -
II Petitioner's Brief 31. Bishop also points out that prior certificate holders might
12 not have used the full quantity of certificated water. In that case, if Thornburgh
13 transfers that water right for resort use and the resort uses the full quantity of the
14 certificate, then the transfer will result in greater negative impacts than predicted
15 in the 2022 FW P.
16 Bishop argues that the transfer of the LeBeau water right for resort use is
17 unreliable because OWRD has proposed to deny the transfer due to predicted
18 harm to the Crooked and Deschutes Rivers' flows. Record 3623. Bishop argues
19 that cancellation of the Dutch Pacific right is unreliable because OWRD has
20 denied Thornburgh's application for transfer to the resort for resort use. Record
21 3624.
Page 52
I Thornburgh responds that OWRD's denial of transfer of the Dutch Pacific
2 water right for resort use does not undermine the 2022 FWMP conclusions
3 because that water right will be cancelled, which allows water to remain in the
4 aquifer to provide benefits to streamflow. While Thornburgh does not
5 specifically respond to Bishop's argument regarding OWRD's proposed denial
6 of the transfer of the LeBeau certificate, Bishop does not explain how the denial
7 of a transfer application for resort water supply undermines the county's finding
8 that the listed water certificates will provide adequate water for mitigalion.
9 Given the record as a whole, a reasonable person could conclude that the
1.0 water rights transactions proposed in the 2022 FWMP will result in no net loss to
l i fish habitat based on quantities and quality of water modeled based on the listed
12 water rights certificates.
13 J. Crooked River Habitat Impacts
14 The Tribe argues that the county's conclusion that the 2022 FWMP
15 satisfies the no net loss standard is not supported by substantial evidence in the
16 whole record because Thornburgh's fisheries expert concluded that, under the
17 2022 FWMP, the resort's water consumption will result in seasonal degradation
18 of the fish habitat quantity and quality in the Crooked River. The Tribe points to
19 a report dated October 21, 2022, in which Thornburgh's environmental science
20 expert, Mugunthan, estimated that the resort groundwater pumping in quantities
21 listed in the 2022 FWMP would reduce surface flows in the Crooked River by
22 "approximately 0.25 cfs and 0.4 cfs, at Osborne Canyon and Opal Springs,
Page 53
I respectively." Record 12708. Mugunthan explained that change is "statistically
2 significant" and would result in depletion of groundwater recharge to surface
3 water. Id. Mugunthan explains that
4 "`Statistically significant' is a statistical term meaning the
5 probability of not having a negative flow difference is very small.
6 However, the statistical test does not provide any context on the
7 magnitude of the impact, which at 0.4 cfs at Opal Springs is
8 negligibly small (less than 0.04%) compared to the surface water
9 baseflow that ranges from 1100 to 1300 cfs." Id. at n 4.
10 Thornburgh engaged RSI to model surface water temperature. RSI
11 produced a report, dated February 21, 2023, which analyzed potential
12 temperature impacts in the Crooked River resulting from reduced ground water
13 discharge caused by resort ground water pumping. Record 1028-34. RSI
14 concluded that the simulated changes in temperature were "not significantly
15 different fi-om zero." Record 1032.
16 With respect to impacts to the Crooked River, Thornburgh's fish expert,
17 Caldwell, concluded as follows:
18 "When averaged across all sites evaluated within the Crooked River,
19 flow is predicted to increase or decrease by less than 0.12 cfs, with
20 decreases occurring in April through early June, again in mid -June,
21 and in late August through October, and increases occurring in early
22 June and late June through raid -August. This would constitute a net
23 decrease in habitat quantity during spring and fall, and a net increase
24 in habitat quantity during most of the summer. Temperature is
25 predicted to generally increase by less than 0.004°C from late May
26 through early October and predicted to decrease by less than
27 0.004°C from April through mid -May and in October. This would
28 constitute a net improvement in habitat quality during spring and
29 fall, and a quality degradation in summer. The maximum effect of
Page 54
I this project on predicted change in flow is a decrease of 0.11 cfs
2 (habitat quantity decrease) and occurs in early September, and the
3 maximum effect on change in temperature is an increase of 0.004°C
4 (habitat quality degradation) and occurs in early July.
5 "Overall, the combined effects of planned groundwater pumping
6 and mitigation appear to vary seasonally within the Crooked River.
7 During the spring and fall, a net impact is expected for fish habitat
8 quantity and a net benefit for fish habitat quality. During the
9 summer, a net benefit is expected for fish habitat quantity and a net
10 impact for fish habitat quality." Record 918 (internal citations
11 omitted).
12 The county found:
13 "According to the science and technical reports, there is generally
14 no scientific or biological significance in the impacts under the
15 2022 FWMP and, as a whole, the plan provides benefits to habitat
16 for fish and aquatic species. Given this context, we find that the 2022
17 FWMP plan meets the No Net Loss Standard.
18
19 "g Substantial evidence shows that virtually all flow and temperature
20 changes, while mostly beneficial, are too small to measure with
21 equipment currently available. Even ODFW notes that impacts to
22 the Crooked River, for example, are `noise."' Record 26.
23 The county also found:
24 "In all reaches impacted by Thornburgh's water use, except certain
25 times and locations in the Crooked River, Thornburgh's transfers
26 (restoration) and other measures may result in a net benefit by either
27 decreasing waterway temperatures overall or by offsetting impacts
28 of the Resort on streams to the point that increase in stream
29 temperatures are so minimal as to be not measurable. The modeling
30 also provides extensive analysis related to spring and seep impacts
31 and concluded that the 2022 FWMP meets the no net loss standard.
32 The 2022 FWMP provides substantial groundwater inputs that
33 globally offset impacts of pumping on habitat." Record 55.
Page 55
I "In the Crooked River, there are slight decreases in flow in amounts
2 so small they cannot be measured using current technology.
3 Similarly, the change to temperature is so small as to not be
4 measurable as well." Record 63.
5 The Tribe argues that there is no evidence in the record explaining how the
6 2022 FWMP will mitigate the impact of fish habitat quality and quantity
7 degradation in the Crooked River that Caldwell predicted. The Tribe further
8 argues that the county's decision is not supported by substantial evidence because
9 Caldwell's and RSI's reports conflict with respect to the impacts of increased
10 temperatures in the Crooked River and the county erred in not addressing that
11 conflict in the findings approving the 2022 FWMP. Tribe's Petition for Review
12 34-35.
13 Thornburgh responds that substantial evidence in the record demonstrates
14 that, under the 2022 FWMP, the resort's water consumption will result in
15 negligible seasonal degradation of the fish habitat quantity and quality in the
16 Crooked River and that implementation of the 2022 FWMP will provide a net
17 benefit to fish habitat. Thornburgh argues that the Tribe's citations to Caldwell's
18 report are incomplete and inaccurate. Thornburgh characterizes Caldwell's report
19 as identifying impacts and ultimately concluding that the 2022 FWMP will result
20 in "a net benefit for both fish habitat quantity and quality at all sites evaluated
21 and would result in no net loss of fish habitat quantity or quality." Record 923.
22 Caldwell found that, while the model predicted reductions in fish habitat quantity
23 and quality, "these model -predicted changes are so small as to be immeasurable
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and are not likely to cause a measurable change in habitat quantity or quality of
fish habitat within the Crooked River." Record 12424-25.
Thornburgh argues, and we agree, that a reasonable person could rely on
that expert opinion to conclude that the 2022 FWMP will result in no net loss of
.fish resources in the Crooked River. That is so even though Mugunthan estimated
that resort water pumping in quantities listed in the 2022 FWMP would reduce
surface water flows in the Crooked River by .25 cfs (at Osborne Canyon) and .40
cfs (at Opal Springs)."
K. Whychus Creek Mitigation
The county found:
"Whychus Creek was the subject of intense litigation that was
resolved with the approval of the IMP. The FMP required
mitigation into Whychus Creek by restoring 1.51 cfs (a minimum of
106 acre-feet) of conserved water from the Three Sister Irrigation
District [(TSID)]. The Whychus Creek mitigation is final and past
all appeals. As there is no change to this segment of the FWMP, any
attack against the plan is an impermissible collateral attack on the
IMP. Further, the evidence shows that Thornburgh has completed
the requirements pertaining to the Whychus Creek Mitigation and
that the water has been permanently transferred instream. Lastly,
Thornburgh is canceling the Dutch Pacific water right that will
provide additional groundwater discharge to Whychus Creek."
Record 31.
17 Thornburgh emphasizes that Mugunthan and ODFW characterized those
estimated impacts as "negligibly small" and "noise." Rec 12708 n 4, 26 n 8.
Page 57
I Petitioners argued below that impacts to Whychus Creek should be
2 addressed anew in current context as part of the 2022 FW 4P. Petitioners also
3 argued that leaving water instreain in Whychus Creek increases temperatures
4 downstream (and negatively impacts fish habitat) because water warms as it
5 moves downstream. Record 66,
6 The county found that "the TSID project provides benefits to Whychus
7 Creek and fully offsets the impact of the Resort's use of groundwater at a higher
8 level than proposed by the 2022 FWMP." Record 56. The county found that the
9 efficacy of the TSID mitigation for Whychus Creek was litigated and settled by
10 Gould v. Deschutes County, 78 01- LUBA 118 (2018). The county also quoted
11 the expert opinion in the 2022 FWMP record stating that the TSID mitigation
12 will be effective. Record 66-67 (quoting Record 571-721,
13 Bishop argues that Thornburgh's modification application opens the issue
14 of the current conditions of all affected habitats, including Whychus Creels, and
15 that there is no evidence in the record that rebuts the Tribe's evidence that the
16 prior mitigation on Whychus Creels is now no longer reasonably certain or likely
17 to result in no net loss of fish and wildlife habitat. Bishop cites Record 4300,
18 4303, and 4305, wherein the Tribe explained that the DB HCP incidental take
19 permit coverage for steelhead in Whychus Creels relies on water temperature
20 decreases from TSID mitigation and the DB HCP applicants acknowledge that if
21 their assumption regarding temperature reduction is incorrect, then the DB HCP
22 applicants might need to revisit the conservation measures for Whychus Creels.
I Nothing in those record citations contradicts Thornburgh's experts' opinion that
2 increased stream flow in Whychus Creels as a result of the TSZD mitigation will
3 result in benefits to fish habitat.
4 The county's observation that the efficacy of the TSZD mitigation with
5 respect to fish habitat in Whychus Creek was previously litigated and resolved
6 was not the county's sole basis for concluding that the 2022 FWMP satisfies the
7 no net loss standard with respect to Whychus Creek. The county also concluded
8 that the TSID mitigation and 2022 FWMP mitigation measures will result in no
9 net loss of fish habitat in Whychus Creels. Contrary to Bishop's assertion, this
10 conclusion is supported by evidence in the record. Specifically, Caldwell
11 analyzed various sensitive sites in Whychus Creek identified by ODFW and
12 conclude that the mitigation under the 2v22 FWliP provides "a net benefit for
13 both fish habitat quantity and quality within Whychus Creek, throughout the vast
14 majority of the irrigation season." Record 917. That conclusion was based on
15 further thermal modeling at various sensitive sites in Whychus Creek as
16 requested by ODFW. Record 571, 1897-1898. Thornburgh also points out that
17 the required 106 acre feet of mitigation water for Whychus Creek in the 2008
18 FWMP was based on 2,129 acre feet of resort pumping. The 2022 FWMP
19 significantly decreased the amount of water the resort will pump, while the
20 completed TSZD mitigation remains unchanged and cancellation of the Dutch
21 Pacific water right will increase mitigation water in Whychus Creek. The
Page 59
1 county's conclusion that Whychus Creek mitigation is sufficient to satisfy the no
2 net loss standard is supported by substantial evidence.
3 L. 2022 FWMP Compliance Provisions
4 Bishop argues that the 2022 FWMP groundwater rights compliance
5 provisions are inadequate to support a conclusion that the 2022 FWMP will result
6 in no net loss to fish habitat. As explained above, for groundwater water rights,
7 the 2022 FWMP provides that "compliance occurs upon the cessation of pumping
8 of the rights and along with any of the following: deed evidencing the transfer of
9 ownership, a submittal to OWRD of any of the following: (i) an assignment of
10 the water right to Thornburgh, (ii) an application that seeks OWRD approval of
11 a transfer to pump at the resort property, or (iii) a cancellation in -lieu of
rniflcrq inn " Record 77 (emphases added). This provision provides the means of
13 demonstrating compliance with the 2022 FWMP during the county's review of
14 future resort land use applications, for Thornburgh's required annual mitigation
15 monitoring report, "or for any other purpose." M. Thornburgh proposed, and the
16 county approved, the following reporting requirements for the 2022 FWMP:
17 "In addition to any reporting required by OWRD pertaining to water
18 use or mitigation, Thornburgh will provide annual reporting (no
19 later than December 31 st of each year) to Deschutes County, with a
20 copy to ODFW's local field office, of the following information:
21 "1. The status of each of the certificated water rights discussed in
22 Section II-132, including the status of any transfer or
23 cancellation applications affecting any of those rights.
24 "2. Copies of any annual reporting fled with OWRD.
Page 60
1 "3. An accounting of the total amount of water pumped under any
2 of the water rights discussed in Section 11-B (2) between
3 November 1 - October 31 of the prior year.
4 "4. An accounting of the total amount of a) groundwater left in
5 ground, b) surface water left instream (permanent or
6 temporary), or c) water held as mitigation credits (permanent
7 or temporary) in accordance with this Section D, paragraphs
8 a,b&c.
9 "5. The accounting referred to in [numbers] 3 and 4 of this section
10 will be maintained both annually, and on a cumulative basis.
11 "6. An accounting of the amount and certificate [number] of any
12 water provided to farmers for drought relief.
13 "7. The amount and source of any OWRD mitigation used to
14 mitigate for the pumping in [number] 3 of this section.
15 "8, Any change in the status of any of the three exempt wells
16 including whether they have been abandoned to date.
17 449. Consistent with the 2008 FWMP, no additional reporting is
18 required during the review of any land use application related
19 to the Resort." Record 78.
20 The county revised prior FMP Condition 3 8 so that it now applies only to
21 a distinct terrestrial wildlife mitigation plan and imposed new FMP Condition 40
22 as follows: "Thornburgh shall comply with the 2022 [FWMP], including its
23 compliance and reporting mechanisms found in Section II of that plan." Record
24 51. See Gould v. Deschutes County, 233 Or App 623, 625-26, 227 P3d 758, 760
25 (2010) (describing distinct mitigation plans addressing terrestrial wildlife and
26 fish habitat). The county found that "that the 2022 FWMP ensures ongoing
Page 61
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
compliance with the No Net Loss Standard and sufficient monitoring is required
by the 2022 FWMP and FMP Condition 40." Record 31.
Bishop argues that the 2022 FWMP assumes completion of the listed water
rights transfers and cancellations. Bishop argues that, thus, the county must
require proof of completion of each alternative OWRD process, rather than mere
ownership of a certificate and submittal of an application to OWRD, before the
county may conclude that the no net loss standard has been satisfied. Bishop
argues that, under the 2022 FWMP, the county has no way to determine if fish
habitat mitigation water will be available before approving actual buildings on
site under a third -stage approval.18
Thornburgh responds that the county may rely upon evidence of
Thor_nburgh's ownersshin of water rights, cessation of pumping; and submittal to
OWRD, and need not wait until OWRD has made a final adjudication.
Thornburgh points out that it may not pump water for resort use until it has
obtained and documented OWRD mitigation necessary to withdraw groundwater
16 for resort use. ,See Or LUBA at (slip op at 44 n 13) (describing OWRD
1.7 mitigation). Thornburgh cites Gould v. Deschutes County, Or LUBA
18 (LUBA No. 2022-013, June 1, 2022), czff'd, 322 Or App 11, 518 P3d 978, rev
19 den, 370 Or 694 (2022) (slip op at 13), for support of its argument that it is entitled
" Bishop points out the county has already issued a building permit for a pump
house and well house on the property. Record 3489-99.
Page 62
1 to rely on valid and existing water nights certificates to satisfy fish habitat benefit
2 requirements.
3 Our conclusion in that case does not support Thornburgh's position here.
4 In that case, we reiterated prior decisions in Gould v. Deschutes County, Or
5 LUBA (LUBA No 2020-095, June 11, 2021) (Gould Golf), aff'd, 314 Or
6 App 636, 494, Pad 357 (2021), rev den, 369 Or 211 (2022) and Gould v.
7 Deschutes County, 79 Or LUBA 561 (2019), aff'd, 310 Or App 868, 484 P3d
8 1073 (2021). In those lines of cases, we concluded that, because OWRD
9 mitigation is based on the resort's consumptive water use, IMP Condition 10
10 "requires proof of adequate water rights and mitigation commensurate with the
11 estimated consumptive use of water for the development approved at each phase
r r 1 i 1 .0 1 » i (� n ♦. Y T���) >\ n i-
12 of development, and in advance of actual water consumption. J9 C L,�JBA at
13 574.19 The county adopted FMP Condition 10 to satisfy DCC 18.113.070(K). We
14 agreed with the county that that showing could be satisfied by documentation of
15 a noncancelled water rights permit. Those cases do not aid Thornburgh in this
16 case, which involves satisfaction of the no net loss standard in DCC
17 18.113.070(D).
19 FMP Condition 10 provides:
"Applicant shall provide, at the time of tentative plat/site plan
review for each individual phase of the resort development, updated
documentation for the state water right permit and an accounting of
the full amount of mitigation, as required under the water right, for
that individual phase." Record 33 n 13.
Page 63
I Similarly, the fact that Thornburgh may not legally pump water for resort
2 use until it has obtained and documented OWRD mitigation necessary to
3 withdraw groundwater for resort use does not ensure that all the required fish
4 mitigation water will be provided in advance of pumping. OWRD mitigation
5 water and fish mitigation water may sometimes be the same water, but it is
6 provided to satisfy different requirements. OWRD's mitigation rules do not
7 ensure the no net loss of fish resources.
8 Thornburgh does not argue that the reporting requirements in the 2022
9 FWMP are sufficient to demonstrate no net loss, and we do not see that they are.
10 The required report might show that the quantities and quality of water assumed
11 in the 2022 FWMP have been provided, or it might not. No additional reporting
12 is requited during the review of any lane] use application related to the resort. As
13 we understand it, the 2022 FWMP modeling assumes equal efficacy and
14 reliability as between instream water right transfers and voluntary cancellation of
15 water rights so that those legal processes have the same instream impacts on
16 water quality and quantity.
17 We agree with Bishop that the county's findings are inadequate to explain
18 why submittal to OWRD is sufficient to satisfy the no net loss standard with
19 respect to groundwater sources for fish habitat mitigation. Indeed, Thornburgh
20 and the county rely upon OWRD processes to ensure that voluntary cancellation
21 of water rights consistent with OWRD rules and review processes will result in
22 improved fish habitat. See Record 749 (Thornburgh's expert, Newton's,
Page 64
I testimony (also quoted above Or LUBA at (slip op at 48))). The county
2 has failed to explain how simple submittal of an application to OWRD permits
3 the county to rely on those OWRD processes.
4 Thornburgh points to no evidence to support the county's conclusion that
5 the "2022 FWMP ensures ongoing compliance with the No Net Loss Standard
6 and sufficient monitoring is required by the 2022 FWMP and FMP Condition
7 40." Record 31. Thornburgh has not pointed to any evidence supporting a
8 conclusion that ground water right certificate ownership, cessation of pumping,
9 and OWRD submittal is sufficient to ensure fish mitigation water will be
10 provided as assumed in the 2022 FWMP.
11 Bishop's second assignment of error is sustained, in part.
12 v III. SUBS T ANC T iAL CHANGE
13 (Gould Second Assignment of Error; COLW First and Third Assignments
14 of Error; Lipscomb First Assignment of Error)
15 As explained early in this decision, CMP and FMP Condition 1 provide:
16 "Approval is based upon the plan as submitted. Any substantial change to the
17 approved plan will require a new application." Record 11426, 11725. The county
18 has interpreted "substantial change" in Condition 1 to have the same meaning as
19 the term is used in DCC 18.113.080, which is "an alteration in the type, scale,
20 location, phasing or other characteristic of the proposed development such that
21 findings of fact on which the original approval was based would be materially
22 affected." The county process for destination resold review and approval allows
Page 65
I for the resort development to change and evolve over time. However, the county
2 is required to revisit and find satisfaction of the resort approval criteria that the
3 county found satisfied by the CMP or FMP if a proposed modification materially
4 affects the original findings for any given criterion.
5 As explained above, the CMP approved the development of three golf
6 courses. The CMP approval required one of the golf courses to be developed in
7 the first phase of the resort development. See Or LUBA at n 5 (slip op
8 10 n 5). As far as we are aware, the FMP did not alter those approvals, so they
9 are part of the FMP. Thornburgh has obtained third -stage approval for the
10 development of one golf course. Gould Golf, Or LUBA . The county
11 found that the prior approvals only require Thornburgh to develop one golf course
12 and the other two golf courses are "optional." Record 38. No party challenges
13 that finding or that characterization of the prior approvals. 2022 FWMP proposes
14 to decrease water pumping and water consumption by abandoning one of the
15 "optional" golf courses.
16 Gould argues that the 2022 FWMP proposes a different, lesser amount of
17 water consumption than contemplated in the FMP and that is a substantial change
18 requiring a new CMP application. COLW argues that Thornburgh's decision to
19 forego developing a golf course to decrease water consumption materially
20 changes the county's findings regarding open space. Lipscomb argues that the
21 proposed modifications alter the facts supporting the findings for the resort
Page 66
I approval criteria related to the economic study, water supply, water system
2 master plan, and wastewater disposal plan.
3 The county found that none of those alleged changes amount to a
4 substantial change to the proposed resort development. Further, the county
5 reasoned that, even if the 2022 FWMP does represent or result in any substantial
6 change, such a change does not require a new CMP or FMP application. Instead,
7 a substantial change would require a new modification application that the county
8 reviews as a land use application —which is how the FMP modification
9 application was processed here. The county reasoned that changing mitigation
10 from the 2008 FWMP to the 2022 FWMP changes no characteristic of the
11 proposed development. Instead,
12 ``the changes in the source ofmitigation water Erom the 2008 F `d`vTMP
13 to the 2022 FWMP is merely a change to a plan that mitigates for
14 the impacts of the proposed development. It does not change the
15 proposed development or the characteristics of it beyond placing a
16 greater restriction on the maximum amount of water used and the
17 number of optional golf courses that may be developed." Record 3 8
18 (emphasis in original).
19 The county further reasoned
20 "DCC 18.113.080 asks whether a proposed change to an `approved
21 CMP' is a substantial change. * * * No finding of the approved CMP
22 addresses the particulars of the 2008 FWMP. Instead, Condition 37
23 of the approved CMP requires the filing and public review of an
24 FWMP with the FMP application. The requested modification of the
25 FWMP has been reviewed in the manner required by Condition 37
26 of the approved CMP, which is through a land use application
27 review.
Page 67
I "Opponents have also argued that DCC 18.113.080's requirement
2 that any substantial change `be reviewed in the same manner as the
3 original CMP' requires an entirely new CMP. That is not the case.
4 The Code merely requires that a substantial change be reviewed `in
5 the same manner' as the original CMP, which is to say that it
6 proceed through land use review in the same way as the original
7 CMP in that case. Even though the [b]oard finds that no substantial
8 change is proposed here, the land use review has afforded the same
9 process provided during the original CMP, which was review before
10 a hearings officer and then the [b]oard of [c]ominissioners.
11 "The [b]oard finds that the Application does not need to meet all
12 criteria related to CMP approval. The [b]oard further finds that the
13 Application does not represent a substantial change as that term is
14 used in DCC 18.113.080." Record 39.
15 The board found that that DCC 18.113.080 defines the meaning of
16 "substantial change" in FMP Condition 1 and that Thornburgh's request for
17 approval of the 2022 FWMP is not a substantial change. The board found that the
18 purpose of the FWMP is to mitigate the impacts of resort development. The
19 mitigation plan is not a development plan. Thus, modification of the FWMP is
20 not a substantial change to the resort plan. The board reasoned that the 2022
21 FWMP will not impose significant additional impacts on surrounding properties
22 because the 2022 FWMP does not allow any significant change to or
23 intensification of the resort development beyond what is allowed under the FMP.
24 The county's conclusion that a substantial change would require
25 Thornburgh to apply for a modification application, as it did here, does not
26 resolve the issues raised in these arguments because the county applied only DCC
27 18.113.070(D), the no net loss criterion, and did not apply the other approval
I criteria that petitioners argue are implicated —namely, criteria regarding
2 economic benefits, open space, and water supply, system, and disposal. DCC
3 18.113.080 and DCC 22.36.040 provide procedures for permit modification
4 applications for discrete portions of an approved FMP. In such cases, only the
S criteria applicable to the modified aspect of the proposal provide applicable
6 criteria. DCC 22.36.040(C).20
7 Even though the 2022 FWI P is directed at satisfying only the no net loss
8 standard, if the measures proposed and approved in the FWMP alter "the type,
9 scale, location, phasing or other characteristic of the proposed development such
10 that findings of fact on which the original approval was based would be
20 DCC 22.36.040 provides, in part:
"B. Unless otherwise specified in a particular zoning ordinance
provision, the grounds for filing a modification shall be that a
change of circumstances since the issuance of the approval makes it
desirable to make changes to the proposal, as approved. A
modification shall not be filed as a substitute for an appeal or to
apply for a substantially new proposal or one that would have
significant additional impacts on surrounding properties.
"C. An application to modify an approval shall be directed to one
or more discrete aspects of the approval, the modification of which
would not amount to approval of a substantially new proposal or one
that would have significant additional impacts on surrounding
properties. Any proposed modification, as defined in DCC
22.36.040, shall be reviewed only under the criteria applicable to
that particular aspect of the proposal. Proposals that would modify
an approval in a scope greater than allowable as a modification shall
be treated as an application for a new proposal."
Page 69
1
2
3
4
5
6
7
8
9
10
11
12
materially affected," then the changes are "substantial changes" that must "be
reviewed in the same manner as the original CMP." DCC 18.113.080. Changes
that may be aimed at satisfying one criterion may also materially affect the
findings that supported satisfaction of another criterion so that the later criterion
is implicated by the modification. The fact that the modification application is
not aimed at the affected criterion or related findings does not mean that the
county is not required to address it. If the 2022 FVVMP would materially affect
the findings of fact on which the original approval was based, then the county is
required to address anew those resort development criteria. Accordingly, we
proceed to analyze the county's conclusion that changes resulting from the 2022
FWMP are not substantial changes that require a new application addressing
those criteria.
13 A. Economic Analysis
14
15
16
17
18
19
20
21
22
23
24
25
DCC 18.113.070(C) is a resort approval criterion that requires the county
to find, as relevant here:
"3. The destination resort will provide a substantial financial
contribution which positively benefits the local economy
throughout the life of the entire project, considering changes
in employment, demands for new or increased levels of public
service, housing for employees and the effects of loss of
resource land.
"4. The natural amenities of the site considered together with the
identified developed recreation facilities to be provided with
the resort, will constitute a primary attraction to visitors,
based on the economic feasibility analysis."
Page 70
I Lipscomb argues that the proposed change to reduce the number of golf
2 courses is a substantial change to the resort development that materially affects
3 the facts underlying the resort's economic analysis that the county relied upon to
4 find that DCC 18.113.070(C) is satisfied in the CMP approval, We agree for
5 reasons explained immediately below.
6 The county relied upon an economic analysis that was based on a total of
7 four golf courses. Record 11690-92, 10520, 10524, 10583, 10588.21 The
8 economic analysis concluded that the golf courses would be an important source
9 of new jobs with a total of 125 newly created jobs and 3.9 million dollars in
10 employee compensation. Record 10588. The county found that the resort "will
11 generate a large number of full-time positions that will have a positive effect on
12 the Deschutes County economy." Record i i 691.
13 Lipscomb argues that the economic benefit of. developing and operating
14 the resort with fewer golf courses is not explained in the record. Thornburgh
15 provided no updated economic analysis. Based on the prior economic analysis,
21 The economic analysis describes two golf courses to be developed at The
Pinnacle Village and two golf courses to be developed at The Tribute village.
Record 10520, 105241 10588. Lipscomb mentions the Benefit Study submitted
as part of the CMP application in 2005, which analyzes economic viability off of
four golf courses, as part of their argument regarding DCC 18.113.070(C).
Lipscomb's Intervenor -Petitioner's Brief 27-28. However, no party explains how
or when the resort plans for four golf courses were reduced to three golf courses
and no party argues that change has any bearing on our analysis in this appeal.
Thus, we assume that it does not.
Page 71
I Lipscomb estimates the resort will lose 39 golf course related jobs and points out
2 that reduced golf facilities may also impact other resort employment and
3
M
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
economic stimulation from the resort.
The county found
"Thornburgh's request does not implicate other elements of the
resort such that a substantial change is requested. Elimination of a
golf course and curtailment of water rights are both measures
allowed by the CMP and FMP as they presently exist. While the
CMP and FMP addressed the impacts of full development of the
Resort, neither plan requires that the Resort be fully developed. This
fact was understood by the [b]oard when it reviewed the CMP and
its various supporting plans. The [board] further finds a `substantial
change' can be approved through a land use application, which is
the process that has occurred." Record 61.
Lipscomb argues that the change of abandoning a golf course that the
county relied on for assessing economic benefits is a substantial change requiring
a new CMP application.
Thornburgh responds that the CMP is not implicated by the 2022 FWMP
and, even if it were, the CMP only requh-ed that one golf course be developed.
For the proposition, Thornburgh cites Thornburgh's burden of proof for the 2022
FW P, partially quoting the CMP approval requirement that "at least one golf
course, the restaurant and meeting rooms and facilities are required to be
constructed in Phase A[.]" Record 13565 n 2.
We initially observe that the fact that the CMP approval required only one
golf course be developed in the first phase of development does not necessarily
demonstrate that, at the CMP stage, the county considered the other golf facilities
Page 72
1 to be "optional" with respect to the whole resort plan. However, because no party
2 challenges the county's finding that the prior approvals require only one golf
3 course, we assume that is a correct statement, as far as it goes.
4 The destination resort statutes do not prescribe a number of golf courses.
5 To qualify as a destination resort, "[a]t least $7 million must be spent on
6 improvements for on -site developed recreational facilities and visitor -oriented
7 accommodations exclusive of costs for land, sewer and water facilities and roads.
8 Not less than one-third of this amount must be spent on developed recreational
9 facilities." ORS 197.445(3). "`Developed recreational facilities' means
10 improvements constructed for the purpose of recreation and may include but are
11 not limited to golf courses, tennis courts, swimming pools, marinas, ski runs and
a err � r/1 !'t 1 n fiL � .� �4 �F
12 'bicycle paths.'' ORS 19 i .43 5(1). DC� 1 a.113. wv requires a des ,inatior, resor� �o
13 provide, in the first phase of development, overnight lodging facilities, developed
14 recreational facilities, eating establishments, and meeting rooms. DCC
15 18.113.060(A)(4) requires a minimum investment of $2,333,333 (in 1993
16 dollars) be spent on developed recreational facilities.22
17 The fact that the CMP and FMP do not condition approval on development
18 of specific golf courses does not answer the issue that Lipscomb raises. The CMP
19 and FMP approvals are expressly "based upon the submitted plan." Record
22 No party argues that abandoning one golf course will cause Thornburgh to
violate the developed recreational facility investment requirements.
Page 73
1 11426, 11725. The county was not required to condition those approvals on
2 development of the recreation facilities in the submitted and approved plan. More
3 importantly, any change to the developed recreational facilities approved in the
4 CMP/FMP may constitute a substantial change.
5 We agree with Lipscomb that the county relied on the proposed and
6 approved golf courses for its economic analysis and conclusion that the proposed
7 resort satisfied DCC 18.113.070(C) in the CMP approval. We agree with
8 Lipscomb that the 2022 FWMP abandonment of golf course facilities is a
9 substantial change that impacts the underlying findings of fact for the CMP
10 approval —namely that the developed golf courses will provide 125 newly
11 created jobs and 3.9 million dollars in employee compensation. Record 10588.
12 Contrary to Thornburgh's response, DCC is 18.113.070(C) implicated by the
13 2022 FWMP because the 2022 FWMP relies on the abandonment of one of the
14 same golf courses that the county relied upon in the CMP approval. We agree
15 with Lipscomb that, based on the CMP approval and supporting economic
16 analysis, the abandonment of the golf course is "an alteration in the type, scale,
17 location, phasing or other characteristic of the proposed development such that
18 findings of fact on which the original approval was based [are] materially
19 affected." DCC 18,113.080.
20 Lipscomb also argues that the cost of employee housing has changed and
21 that change is a substantial change that requires a new economic analysis related
22 to "housing for employees" in DCC 18.113.070(C)(3). Thornburgh responds that
Page 74
I the 2022 FW P does not increase the number of employees that will need to be
2 housed, and so that aspect of the findings supporting the CMP are not materially
3 affected by the potential decrease of employment resulting from not developing
4 one golf course. Pinnacle's Intervenor -Respondent's Brief 31.
5 We disagree with Lipscomb that a general change in rental cost and
6 availability is a "substantial change" that Thornburgh would be required to
7 address. However, we conclude that the 2022 FWIVIP requires changes that
8 materially affect the county's findings that DCC 18.113.070(C)(3) and (4) are
9 satisfied. Accordingly, on remand, the county will need to consider whether, with
10 the changes proposed in the 2022 FWMP, those criteria are satisfied. On remand,
11 the county will need either to consider changes to employee housing demands
12 based on the changes in the 2022 F WMP or explain why that consideration is not
13 required.
14 The issue then becomes what is the proper remedy for this error? Lipscomb
15 argues that the phrase "new application" in Condition 1 can only mean a new
16 CMP application and a new FMP application because the findings supporting
17 those approvals must change.
18 The county found
19 "The CMP originally imposed Condition 1, which states that
20 `Approval is based upon the submitted plan. Any substantial change
21 to the approved plan will require a new application.' Upon FMP
22 approval the hearings officer carried through the condition to ensure
23 compliance with the original CMP. The condition means the same
24 in both contexts, and neither require that an application for a new
Page 75
I CMP or new IMP be sought, only that a modification application
2 be filed and then reviewed in the same manner as the original
3 approval.
4 "This interpretation is consistent with the [b]oard's previous
5 findings in Thornburgh's CMP decision in 2006. In our 2006
6 Decision, the [b]oard determined that the substantial change of
7 converting Phase A Overnight lodging Units to single-family homes
8 would require `a modification of this conceptual master plan' -- not
9 approval of a new CMP. DC Document 2006-151, p. 46. This
10 finding is contained in the same decision that created Condition 1.
11 If a new CMP were required to make a substantial change such as
12 this to the CMP, Condition 1 would surely have said so.
13 Additionally, Condition 1 does not say that a substantial change
14 renders the approved CMP or FMP void. It only requires a `new
15 application' which the [board's] CMP findings indicate is an
16 application for modification of the conceptual plan." Record 39-40.
17 Lipscomb argues that interpretation of Condition 1 is inconsistent with the
18 text of that condition, which requires a "new application." Lipscomb argues that
19 the county's interpretation fails to give any meaning to the term "new." Lipscomb
20 points out that DCC 22.36.040, which applies generally to all modifications to a
21 county land use approval, requires a new application for requests that
22 substantially modify an approval. See Or LUBA at (slip op at 69 n 20),
23 Lipscomb argues DCC 22.36,040 provides context for FMP Condition 1 and that
24 the phrase "new application" must be read as providing a distinction between
25 modification applications and applications for new proposals. Lipscomb argues
26 that the county's interpretation in this case that "new application" means a
27 modification application instead of a new CMP application fails to give meaning
28 to the term "new application."
1
I With respect to DCC 22.36,040, petitioners argued below that the 2022
2 FWMP is a "substantially new proposal" under DCC 22.36.040(B) that could not
3 be approved as a modification and, instead, required a new CMP/FMP
4 application. The county rejected that argument and found:
5 "DCC 22.36.040.13 relates to whether the modification modifies the
6 actual approved use, in this case, the Resort as a whole. It relates
7 primarily to the approved FMP and, because the Application only
8 proposes an updated FWMP without substantially changing the
9 actual required development contemplated by the FMP, we cannot
10 find the proposal to be a `substantially new proposal."' Record 43.
11 Thornburgh responds that Thornburgh's application is for modification of
12 the FWMP, which is a discrete portion of the FMP. Thus, a modification
13 application is appropriate and consistent with Condition 1, DCC 18.113.080, and
If+ LA - All LG.JI).V41n1, WAlrelf provAde for A1AEJdrficairoiA applications for discrete
15 portions of an approval. With that context, Thornburgh argues that the board's
16 interpretation of Condition 1 that "new application" requires only a new
17 modification application and not a new CMP/FMP application is plausible and
18 therefore entitled to deference under ORS 197.829(d) and Siporen, 349 Or 247.
19 Pinnacle's Intervenor -Respondent's Brief 34.
20 Lipscomb argues that deference applies only to the board's interpretation
21 of provisions of the county code and not interpretation of conditions of approval.
22 As we have previously explained:
23 "ORS 197.829(1) requires LUBA to affirm a governing body's
24 interpretation of its own comprehensive plan provision or land use
25 regulation unless the interpretation is inconsistent with the provision
Page 77
I or regulation's express language, purpose, or underlying policy.
2 ORS 197.829(1) generally does not require LUBA to affirm a local
3 government's interpretation of a prior land use decision or
4 conditions of approval attached to a prior land use decision. M & T
5 Partners, Inc. v. Cit1� of Salem, [80 Or LUBA 221, 229-30 (2019)],
6 aff'd sub nom, M& T Partners, Inc. v. Miller', 302 Or App 159, 170,
7 460 P3d 117 (2020). To a `limited extent,' LUBA will defer to
8 plausible interpretations of county land use regulations that the
9 governing body made in the course of interpreting a condition of
10 approval. Kuhn v. Deschutes County, 74 Or LUBA 190,194 (2016).
11 The deference question `reduces to whether the city was interpreting
12 a land use regulation,' and a condition of approval is not a land use
13 regulation. M & T Partners, 302 Or App at 170." Gould Golf,
14 Or LUBA at __ (slip op at 16-17).
15 Here, the county adopted CMP/FMP Condition 1 to embed in the approval
16 the same requirement found in DCC 18.113.080. Similarly, here, the board's
17 interpretation and application of FMP Condition Its couched in the board's
18 :rpretD2�nteS. 2...1ccordiigiy, we defer to
19 the board's interpretation because it is plausible. While "new application" could
20 mean new CMP/FMP application, it could also plausibly mean new modification
21 application, as the county concluded.
22 The question then becomes whether the county's error in failing to address
23 the findings regarding the economic analysis can be remedied by a remand in this
24 proceeding. LUBA's decision to reverse or remand is not limited to the
25 disposition requested by the parties but is based on "what the nature of the
26 assigned and established error demands." McKay Creek Valley Assn. v.
27 Washington Couno3 , 114 Or App 95, 99, 834 P2d 482, adh'd to as modified on
28 recons, 116 Or App 299, 841 P2d 651 (1992), rev den, 317 Or 396 (1993); OAR
Page 78
1 661-010-0071 (setting forth circumstances under which LUBA "shall reverse" or
2 "shall remand").
3 Thornburgh applied to modify the FMP. When compliance with an
4 applicable approval criterion would require more than insignificant changes to
5 the application, if not a new application, reversal is the appropriate remedy.
6 Rogue Advocates v. City of A shland, Or LUBA (LUBA No 2021-
7 009, May 12, 2021) (citing Richmond Neighbors v. City of Portland, 67 Or
8 LUBA 115, 129 (2413)) (slip op at 20). As we explained in Richmond Neighbors:
9 "OAR 661-010-0071 provides that LUBA shall reverse a decision
10 when `[t]he decision violates a provision of applicable law and is
11 prohibited as a matter of law,' while LUBA shall remand a decision
12 when `[t]he decision improperly construes the applicable law, but is
13 not prohibited as a matter of law.' * * * [W]hether reversal or
14 remand rs appropriate depends on w�hethel rt rs file del:rsrori or the
15 proposed development that must be corrected. If the identified errors
16 can be corrected by adopting new findings or accepting new
17 evidence, * * * then remand is appropriate. If the identified errors
18 require a new or amended development application, then reversal is
19 appropriate." 67 Or LUBA at 129 (citing Angius v. Washington
20 County, 35 Or LUBA 462, 465-66 (1999); Seitz v. City of Ashland,
21 24 Or LUBA 311, 314 (1992)).
22 Here, the identified error may be corrected by the county accepting a new
23 economic analysis that demonstrates that "[t]he destination resort will provide a
24 substantial financial contribution which positively benefits the local economy
25 throughout the life of the entire project, considering changes in employment,
26 demands for new or increased levels of public service, housing for employees
27 and the effects of loss of resource land" and that "[t]he natural amenities of the
Page 79
I site considered together with the identified developed recreation facilities to be
2 provided with the resort, will constitute a primary attraction to visitors, based on
3 the economic feasibility analysis." DCC 18.113.070(C)(3), (4). Accordingly, we
4 conclude that the established error should result in remand in this case.
5 B. Open Space
6 DCC 18.113.060(D)(1) is a resort approval criterion that provides, in part:
7 "D. A destination resort shall, cumulatively and for each phase,
8 meet the following minimum requirements:
9 661 The resort shall have a minimum of 50 percent of the
10 total acreage of the development dedicated to
11 permanent open space, excluding yards, streets and
12 parking areas."
13 The county is required to find that "[a]dequate open space, facility
14 maintenance and police and fire protection shall be ensured in perpetuity in a
15 manner acceptable to the County," and "[t]he open space management plan is
16 sufficient to protect in perpetuity identified open space values." DCC
17 18.113.070(R), (T)
18 In the CMP approval, the County found approximately 1,358 acres or 69
19 percent of the total resort would be designated as permanent open space,
20 including common open space and three golf courses. Record 13091-92, 11651-
21 52. Thornburgh submitted, and the county approved, an open space phasing plan
22 depicting "phase -by -phase protection and development of open space areas
23 including natural common areas, trails, and golf courses." Record 11651.
24 CMP Condition 14 provides in relevant part:
I "Applicant and its successors shall do the following to ensure that
2 all open space used to assure the 50% open space requirement of
3 Section 18.113.060(D)(1) is maintained in perpetuity:
4 «*****
5 "C. All deeds conveying all or any part of the subject property
6 shall include the following restriction: This property is part of
7 the Thornburgh Resort and is subject to the provisions of the
8 Final Master Plan for Thornburgh Resort and the Declaration
9 of Covenants, Conditions and Restrictions of Thornburgh
10 Resort. The Final Master Plan and the Declaration contain a
11 delineation of open space areas that shall be maintained as
12 open space areas in perpetuity.
13 "D. All open space areas shall be clearly delineated and labeled
14 on the Final Plat.
15 "E. Any substantial change to the open space approved under this
16 decision will require a new land use permit." Record 11726-
17 27.
18 In the FMP approval, the county found that CMP Condition 14 was
19 satisfied because the IMP site plan delineated 1,293 acres, 66 percent of the
20 resort site, as open space comprised of "golf open space, common open space
21 and buffer open space." Record 10958.
22 Opponents argued to the county that Thornburgh's plan to remove a golf
23 course is a substantial change that requires review as a modification to the CMP
24 and FMP. The county disagreed and found that the CMP and FMP approvals
25 contemplated changes to the golf courses and that the county has already
26 approved various site plans, including a golf course site plan that varied from the
27 precise layout of the resort open space map approved in the FMP approval.
9 9 1 l,
I DCC 18.113.040(C), governs site plan review and provides:
2 "Each element or development phase of the destination resort must
3 receive additional approval through the required site plan review
4 (DCC 18.124) or subdivision process (DCC Title 17). In addition to
5 findings satisfying the site plan or subdivision criteria, findings shall
6 be made that the specific development proposal complies with the
7 standards and criteria of DCC 18.113 and the FMP."
8 The board found that DCC 18.113.040(C) allows reasonable revisions to
9 the IMP layouts during third -stage review and that the FMP provides general,
10 preliminary descriptions that are subject to revision in third -stage review. Only
11 changes that result in substantial changes to the CMP or FMP require a separate
12 modification application. Record 47.
13 COLW argues that the loss of a golf course materially affects the original
14 findings of fact regarding open space, COLW ar'gties that the 2022 F "R V
15 approves removing a golf course approved in the IMP, which COLW argues
16 thereby removes that area from being counted as open space because the
17 application and challenged decision does not explain if the removed golf course
18 will become common open space, buffer open space, or something else.
19 Thornburgh responds that while some of the area delineated as golf course
20 open space will not be developed as a golf course, the FMP approval still requires
21 that area be maintained as open space and the 2022 FWMP approval does not
22 approve any other use of the golf course area. Thornburgh points out that CMP
23 Condition 14 does not require a specific location of use of open space. Instead,
Page 82
I that condition requires that open space be included and delineated on final plats,
2 which require third -stage review and approval.
3 COLW does not challenge the county's finding regarding DCC
4 18.113.040(C) or respond to Thornburgh's argument that the open space
5 requirement is ensured through third -stage review. COLW has not demonstrated
6 that the county erred in approving the 2022 FWMP, which relies on the
7 abandonment of development of a golf course, without requiring an application
8 to modify the CMP/FMP with respect to open space.
9 C. Water Supply, Consumption, and Conservation
10 DCC 18.113.070(K) is a resort approval criterion that requires the county
11 to find:
12 "Adequate water will be available for all proposed uses at the
13 destination resort, based upon the water study and a proposed water
14 conservation plan. Water use will not reduce the availability of
15 water in the water impact areas identified in the water study
16 considering existing uses and potential development previously
17 approved in the affected area. Water sources shall not include any
18 perched water table. Water shall only be taken from the regional
19 aquifer. Where a perched water table is pierced to access the
20 regional aquifer, the well must be sealed off from the perched water
21 table."
22 In approving the 2022 FWMP, the county found that the CMP and FMP
23 approvals did not depend on or require the resort to be developed to utilize all of
24 the water predicted as consumptive use in the FMP. Thus, the county found that
25 Thornburgh's commitment in the 2022 FWMP to use less water than
26 contemplated in the FMP and to forego developing a golf course that was
Page 83
I approved in the FMP, does not change the approved resort in a manner that the
2 CMP/FMP findings of satisfaction of DCC 18.113.070(K) would be materially
3 affected. Record 38. The county further found that "compliance with DCC
4 18.113.070(K) is addressed by FMP Condition 10, which is not implicated in a
5 review of the FWMP, as [Thornburgh] continues to rely on G-17036 for the
6 Resort's water source." Record 33 (footnote omitted).
7 Gould argues that the county failed to make adequate findings that water
8 is available to satisfy DCC 18.113.070(K). COLW argues that Thornburgh has
9 lost its right to withdraw groundwater for resort use and that the loss of water
10 supply is a substantial change necessitating new CMP and IMP applications.
11 Gould and Lipscomb argue that Thornburgh's proposed water consumption and
U changes in. water availability alter the fi dan,ental facts supporting the county's
13 finding that the CMP and IMP satisfied DCC 18.113.070(K). Petitioners argue
14 that the 2022 FWMP substantially changes the consumptive use of water and that
15 FMP Condition 1 and DCC 18.113.080 apply to all substantial changes —not only
16 changes that result in greater impacts.
17 The county found that DCC 18.113.070(K) is not implicated in its review
18 of the 2022 FWMP, because the 2022 FWMP is required to satisfy the no net loss
19 criteria in DCC 18.113.070(D). Record 33. Thornburgh responds that its
20 application sought to modify only the FWMP. It is undisputed that the 2022
21 FWMP requires Thornburgh to decrease the amount of water that the resort will
22 pump and consume. The issue is whether the decrease in water demand for the
Page 84
I overall resort described and approved in the 2022 FWMP is an alteration that
2 materially affects the findings of fact that DCC 18.113.070(K) is satisfied.
3 With respect to water availability, the county found during the CMP
4 approval that the source of water for the project is groundwater from the
5 Deschutes Basin regional aquifer and that Thornburgh's water study and water
6 conservation plan demonstrated that adequate water is available from the aquifer
7 for the project. Record 11702. At that time, Thornburgh had submitted to OWRD
8 an application for a water right and OWRD provided a letter indicating that
9 groundwater was available for the resort and the application was likely to be
10 approved, subject to OWRD mitigation. requirements. Record 11703. The county
I found that Thornburgh was not precluded fi•om obtaining a state water right
c T. 3't: h n tn.....tiirn the
12 permit to use groundwater for the resort Ill addition, and in the a 41 mat.1 V v, (.1111
13 county found that it was feasible for Thornburgh to obtain the water right based
14 on evidence of available water sources to satisfy the OWRD mitigation
15 requirements. Record 11704.
16 At the FMP stage, Thornburgh had obtained Water Right Permit G-17036
17 for a quasi -municipal use of groundwater, which authorized. Thornburgh to
18 withdraw groundwater from six wells for resort use, including a golf course and
19 irrigation lakes. Gould, 322 Or App at 14-15 (describing OWRD right and
20 required mitigation). The county imposed FMP Condition 10 "to ensure
21 compliance with DCC 18.113.070(K), which is concerned with the availability
22 of water for resort use and mitigation for the resort's consumptive use of water,
I which is related to but distinct from the fish and wildlife mitigation plan that is
2 required in order to satisfy DCC 18.113.070(D)."23 Gould Golf, Or LUBA at
3 (slip op at 12). FMP Condition 10 must be satisfied at each third -stage review
4 phase. FMP Condition 10 imposes a requirement for documentation of water
5 rights and an accounting of the amount of required mitigation for each phase of
6 development. Gould, 322 Or App at 17.
7 Petitioners argue that the material facts are substantially different than the
8 facts the county found to support the CMP approval because, petitioners contend,
9 Water Right Permit G-17036 is expired and Thornburgh has not established, in
10 this proceeding, an alternative water right. Lipscomb argues that the proposed
11 modifications in the 2022 FWMP "alter the findings for the CMP and FMP
12 approvals, relying on multiple reports." T.inscotri�i'g Inte.-venor-Pet.tioner'-. Rr-iP-f
ri - 'Y s A/A AV.
13 31. Lipscomb does not identify specific "findings of fact on which the original
14 approval was based [that are] materially affected" by the change of water source
15 for resort use. DCC 18.113.080.
16 It is undisputed that the 2022 FWMP relies on the transfer of a variety of
17 water rights that were not considered during the CMP and FMP approvals or
18 included as part of the 2008 FWMP. DCC 18.113.070(K) requires the resort to
19 use groundwater from the regional aquifer. No party has argued that Thornburgh
23 FMP Condition 3 8 was adopted to satisfy DCC 18.113.070(D). The county
amended FMP Condition 38 and imposed new FMP Condition 40 in the
challenged decision.
Page 86
I proposes in the 2022 FWMP to use water fiom any other source. As we
2 understand it, Thornburgh proposes to seek OWRD approval to transfer existing
3 water rights to the resort for groundwater withdrawal from resort wells that draw
4 from the regional aquifer. Thornburgh. responds and we agree that the CMP
5 findings do not rely on or require any particular water permit for consumptive
6 use but require that the resort use water from the regional aquifer. Thornburgh
7 also argues that the evidence before the county in this case is that G-17036
8 remained non -cancelled and the county reasonably concluded that source of
9 water remained available. Record 968. Thornburgh also responds that it has
10 "provided proof of ownership of numerous other certificated water rights that
11 may be used for consumption or mitigation following appropriate OWRD
12 processes and consistent well the 2022 P YVMIR Delay lmutt s inte veno -
13 Respondent's Brief 14-15.
14 Petitioners have not established that the 2022 FWMP proposes any change
15 of water supply that materially affects the findings of fact on the which the CMP
16 or FMP approvals rely. In Gould v. Deschutes County, Or LUBA ,
17 (LUBA No 2022-011, June 16, 2022) (slip op at 13), we affirmed the hearings
18 officer's interpretation of "substantial change" in FWP Condition 1 and DCC
19 18.113.080 "as a change that will result in significant additional impacts on
20 surrounding properties." We agree with the county's conclusion that the 2022
21 FWMP does not propose a substantial change to the resort water supply both
22 because it proposes a decrease in water use and because it does not propose a
I change in water source outside the required regional aquifer. For those same
2 reasons, we agree that the county did not err in concluding that DCC
3 18.113.070(K) is not applicable to its review of the 2022 FWIVIP. Thus, the
4 county was not required to make findings in the challenged decision that
5 demonstrate satisfaction of DCC 18.113.070(K). Assignments of error and
6 arguments that rely on DCC 18.113.070(K) provide no basis for remand and we
7 reject them."
8 D. Water System and Wastewater Disposal Plans
9 DCC 18.113.050(B)(11)(c) is a CMP criterion that requires
10 "[a] water conservation plan including an analysis of available
11 measures which are commonly used to reduce water consumption.
12 This shall include a justification of the chosen water conservation
13 plan. The water conservation plan shall include a wastewater
14 disposal plan utilizing beneficial use of reclaimed water to the
15 maximum extent practicable.
16 "For the purposes of DCC 18.113.050, beneficial uses shall include,
17 but are not limited to:
18 "(1) Irrigation of golf courses and greenways;
19 "(2) Establishment of artificial wetlands for wildlife
20 habitation."
21 Similarly, DCC 18.113.070(L) requires the county to find:
22 "The wastewater disposal plan includes beneficial use to the
24 Consistently with that conclusion, we do not address petitioners' arguments
that Thornburgh's groundwater permit G-17036 has expired.
Page 88
I maximum extent practicable. Approval of the CMP shall be
2 conditioned on applicant's making application to [Department of
3 Environmental Quality (DEQ)] for a Water Pollution Control
4 Facility (WPCF) permit consistent with such an approved
5 wastewater disposal plan. Approval shall also be conditioned upon
6 applicant's compliance with applicable Oregon Administrative
7 Rules regarding beneficial use of waste water, as determined by
8 DEQ. Applicant shall receive approval of a WPCF permit consistent
9 with this provision prior to applying for approval for its [FMP]
10 under DCC 18.1 U."
11 The CMP approval is based on a Water System Master Plan and Sewer
12 System Master Plan submitted with the CMP. Those plans describe a water
13 supply system consisting of six wells and four storage reservoirs. Record 11655
14 (CMP approval findings and decision). A separate wastewater system would
15 store treated wastewater in lakes and ponds and use that water to irrigate golf
16 courses. Id. The design of the wastewater treatment system was not described
17 because it would depend on the golf course design. Id. A separate hydrology
18 report "identifie[d] water needs and sources, including detailed plans for
19 obtaining state water rights for new ground water development and providing
20 required mitigation for potential impacts to the Deschutes River." Id, The Sewer
21 System Master Plan described "self-contained, on -site community sewage
22 treatment facilities, developed in concert with phased construction of the overall
23 project" and requiring DEQ approval. Id. The Water System Master Plan and
24 Sewer System Master Plan did not change between the CMP and FMP.
25 The water conservation and wastewater disposal plans propose to reuse
26 wastewater to irrigate the planned golf courses. Record 11664-65. Lipscomb
Page 89
1 argues that the 2022 FWMP plan to not develop one of the golf courses approved
2 in the IMP leaves Thornburgh without sufficient wastewater disposal capacity
3 because the removal of one golf course will decrease the amount of land where
4 wastewater may be applied and, therefore, reduce the amount of wastewater that
5 can be reused as irrigation water. Thornburgh responded below that they can
6 increase wastewater application on the remaining golf courses. Record 1650,
7 6293.21
8 The county found that nothing in the 2022 FWMP implicates the Sewer
9 Master Plan. Record 49. Nevertheless, the county observed that
10 "the Sewer System Master Plan found that only 34.5 acres of land
11 are needed in the south basin to apply treated effluent to. The south
12 basin is the southern half of the Resort that received approval for
13 two golf courses but where only one will be built. Based upon the
14 size of the approved golf course and other open space and
15 landscaped areas already approved by previous decisions, there is
16 more than enough land to apply the effluent contemplated by the
17 Sewer Master Plan. Thornburgh has also provided a technical
zs Thornburgh reasoned:
"We reduced golf course water use by 30% by not building a golf
course. We did not further reduce the water use by 30% per course.
The 250.5 AF per course only includes golf, not other incidental
irrigation which adds another 111 AF. [Cascade Geoengineering
Memo August 12, 2022, Page] 11. The extra 111 AF is another 44%,
or roughly 99,000 gpd, that portions of which Thornburgh could use
treated effluent on which would eliminate the excess of 58,126 cited
by E-Pur. Also, the 250.5 AF per golf course is not the maximum
amount of water that we can put on the golf course. It is the volume
that we will pump from the aquifer." Record 6293.
Page 90
I response to this issue, which is persuasive." Id..
2 Finally, the county reasoned that Thornburgh's sewer system, including
3 wastewater reuse for irrigation, is subject to DEQ approval, and DEQ "is the
4 correct body to approve construction drawings and requirements." Id.
5 Lipscomb argues that Thornburgh's solution --to apply additional
6 wastewater to the one golf course— "stands in contrast to the findings relied upon
7 in the water conservation program requiring [Thornburgh] to explicitly not over-
8 treat the golf courses with effluent." Lipscomb's Intervenor -Petitioner's Brief 31
9 (emphasis in original). Lipscomb points to the water conservation objectives in
10 Thornburgh's Water Management and Conservation Program report submitted in
11 support of the CMP, which includes the following objective: "Avoid over-
12 application of water on irrigated areas." Record 1675-81. We understand
13 Lipscomb to argue that Thornburgh proposes overirrigation of the developed golf
14 course.
15 Lipscomb has not established that Thornburgh's proposal to apply
16 wastewater that would otherwise have been applied to irrigate the abandoned golf
17 course to the developed golf course and other landscaping and open space is a
18 "substantial change" that materially affects the county's conclusion for the
19 original CMP approval that the resort will conserve water and that its wastewater
20 disposal plan will result in beneficial use of reclaimed water as required by DCC
21 18.113.050(B)(11)(c) and DCC 18.113.070(L). As the county concluded, and no
22 party disputes, Thornburgh's application of wastewater for irrigation will require
Page 91
I DEQ approval, which will require DEQ review for compliance with
2 administrative rules regarding beneficial use of wastewater. DCC 18.113.070(L)
3 contemplates that process will ensure beneficial use of resort wastewater,26
4 Lipscomb's argument regarding changed application of wastewater provides no
5 basis for remand.
6 Lipscomb's first assignment of error is sustained, in part. Gould's second
7 assignment of error and COLW's first and third assignments of error are denied.
8 IX. VOID CMP
9 (Gould First Assignment of Error)
10 Gould argues that the county erred in approving amendments to the CMP
11 and FMP because, according to Gould, the CMP is void, has not been initiated,
12 and there iS no CN4P +n alnend. "%J U'S PCtitioii fair N-eview 5-6. YVre Start by
1V Vl 1L LV
13 summarizing prior appeals to provide context for this argument. The county's
14 decision approving the CMP with conditions became final on April 15, 2008.21
15 Petitioner appealed and the CMP approval was affirmed on appeal. Gould v.
16 Deschutes Couno, 57 Or LUBA 403 (2008), aff'd, 227 Or App 601, 206 P3d
26 DCC 18.113.070(L) requires an applicant to receive DEQ approval for a
WPCF permit prior to applying for FMP approval. Lipscomb does not argue that
Thornburgh was required to obtain a WPCF permit as a precondition to the 2022
FWM P approval.
27 The CMP approval deferred determination of compliance with the DCC
18.113.070(D) no net loss standard to the FMP. We and the courts rejected
challenges to that deferral determination in the CMP.
Page 92
1 1106, rev derv, 347 Or 258 (2009). While those appeals of the CMP were pending,
2 Thornburgh applied for and obtained FMP approval on October 8, 2008.
3 Petitioners appealed and we remanded. Gould v. Deschutes Counot , 59 Or LUBA
4 435 (2009), aff'd, 233 Or App 623, 227 Pad 758 (2010).
5 Under DCC 22.36.010(B)(1) "a land use permit is void two years after the
6 discretionary decision becomes final if the use approved in the permit is not
7 initiated within that time period." Under DCC 22.36.020(A), there are three ways
8 a development action can be "initiated," and one of those ways is "[w]here
9 construction is not required by the approval, the conditions of a permit or
10 approval have been substantially exercised and any failure to fully comply with
11 the conditions is not the fault of the applicant." DCC 22.36.020(A)(3). In 2011,
12 the then resort owner obtained a declaratory ruling from the county that the CMP
13 had been timely initiated. Gould appealed that decision, which led to multiple
14 appeals and remands. Ultimately, in 2015, we remanded the county's decision
15 that the CMP had been timely initiated. Gould v. Deschutes County, 72 Or LUBA
16 258 (2015). Thornburgh and the county have taken no further action on that 2015
17 remand. Gould relies on that unresolved remand to argue in this appeal that the
18 CMP is void both for failure to initiate and for failure to resolve the 2015 remand.
19 Gould argued to the county that the CMP is void and, thus, the county
20 lacked jurisdiction to approve the 2022 F W1V1P amendment. The county rejected
21 that argument and found:
22 "Opponents claim that LUBA held in Central Land and Cattle[,
Page 93
I LLQ v. Deschutes Couny), 74 Or LUBA 326[, aff'd, 283 Or App
2 286, 388 P3d 739 (2016), rev den, 361 Or 311 (2017)] land use
3 decision ([2016 FMP]) that the Thornburgh conceptual master plan
4 or `CMP' is void. LUBA held that `[a]II requirements of the CMP
5 approval are now requirements of the County's FMP approval' and
6 the FMP `has effectively incorporated and displaced the CMP
7 approval' [2016 FMP, 74 Or LUBA] at 346. LUBA did not find that
8 the CMP is void. Furthermore, as is detailed in that case, the
9 County's hearings officer rejected * * * Gould's argument in that
10 case that the CMP was void and LUBA affirmed that decision.
11 Therefore, this argument is an impermissible collateral attack on the
12 resolution of this issue by the [2016 FMP]. It is also settled and
13 binding under Gould v. Deschutes County, _ Or LUBA _ (LUBA
14 No 2022-013, June 1, 2022), aff'd, 322 Or App 11, 23 (2022)
15 (explaining a party may not relitigate issues resolved in previous
16 phases of development), rev den, [370] Or [694].
17 56Opponents go on to claim that the CMP is void 'because
18 Thornburgh failed to seek and the County failed to hold a hearing
19 on remand in Gould v. Deschutes County, 72 Or LUBA 258 (2015)
20 with xn the statutory timeline under ORS 215.435. Tills issue is an
21 impermissible collateral attack on LUBA's finding that the CMP has
22 been incorporated into the FMP. Furthermore, the provision of ORS
23 215.435 that terminates an application if a review on remand is not
24 requested within 180 days of the final resolution of judicial review
25 was not effective until after LUBA issued its remand decision. This
26 law may not be applied retroactively because to do so would
27 prejudice the Applicant in that case by voiding that application.
28 Furthermore, the case in question did not find that the CMP is void
29 and that was not its legal effect. LUBA approved the FMP thereafter
30 finding that it incorporated the CMP and that decision is final.
31 "The Board finds that Thornburgh's CMP is not void.
32 "Moreover, the Board notes that the CMP required creation of a
33 FWMP to meet the No Net Loss Standard at FMP approval stage,
34 not during CMP review. Therefore, the CMP is not implicated or
35 altered by this Application; there is no change to the CMP and
36 findings from the CMP are not altered." Record 35-36 (emphasis in
Page 94
I original).
2 We agree with the county's conclusion that the void CMP issue was raised
3 and resolved in our decision in 2016 FMP, where we explained:
4 "For purposes of this appeal we will assume without deciding that
5 the CMP approval has become `void' under DCC 22.36.010(B)(1).
6 However, even if we assume the County's CMP approval became
7 void on November 18, 2011, we conclude below in addressing the
8 third cross -assignment of error that the FMP remand. proceedings
9 were initiated by Thornburgh Resort on August 15, 2011, which was
10 before the CMP became void. The county's first FMP approval
11 decision found, with only two exceptions, that the FMP fully
12 complies with the CMP. Those two exceptions have to do with the
13 no net loss/degradation standard that normally applies at the time of
14 CMP approval. The county's decision to defer its finding on the
15 DCC 18.113.070(D) no net loss/degradation standard until FMP
16 approval was affirmed in Gould v. Deschutes Counot , 57 Or LUBA
17 403 (2008), aff d, 227 Or App 601, 206 P3 d 1106 (2009).
18 "As Gould correctly notes, the CMP potentially remains a relevant
19 source of FMP approval considerations because at least some of the
20 CMP conditions of approval effectively cannot be performed until
21 after FMP approval. But those conditions of approval were carried
22 forward in the county's first FMP approval decision and remain part
23 of the current FMP approval decision. All requirements of the CMP
24 approval are now requirements of the county's FMP approval. The
25 FMP approval has effectively incorporated and displaced the CMP
26 approval. In these unusual circumstances, where the only remaining
27 questions on appeal concern two issues that were expressly deferred
28 to the FMP decision, we conclude it was not error for the county to
29 proceed to determine on remand whether the errors identified by
30 LUBA in the FMP could be corrected and the FMP approved for a
31 second time, even though the CMP approval has become void."
32 2016 FMP, 74 Or LUBA at 346 (footnote omitted).
33 The FMP approval has effectively incorporated and displaced the CMP
34 approval. Thus, as we have previously concluded, even if we assume that the
I CMP is void, the FMP is the operative decision. CMP provisions remain as
2 enforceable criteria in subsequent decisions only to the extent that they are carried
3 forward in the FMP. Gould seeks to relitigate an issue that has been decided in
4 prior proceedings in this same dispute. See Beck v. Tillamook, 313 Or 148, 153,
5 831 P2d 678 (1992) (a party may not relitigate issues that have been resolved on
6 review of previous phases of the same land use litigation); see also Gould, 322
7 Or App at 23 (Beck law of the case doctrine includes later phases of the same
8 land use litigation). Even if Gould's argument was not precluded by the law of
9 the case, we would reach the same conclusion for the same reasons quoted
10 directly above. That is, even if we assume that the CMP is void, the FMP is the
11 operative decision. The 2022 FWMP amends the FMP. The county correctly
12 concluded that it could approve the 2022 F�J;,'i�,.V amendxxicilt, w hic ti the l ouilLy
1.3 correctly observed is an amendment to the FMP.
14 Gould's first assignment of error is denied.
15 X. CMP CONDITION 28
16 (CO1C,W Second Assignment of Error; Lipscomb Second Assignment of
17 Error)
18 COLW and Lipscomb argue that the county misconstrued CMP Condition
19 28 and DCC 22.20.015(A) and contend that CMP Condition 28 requires ODFW
20 and .Bureau of Land Management (BLM) agreement with the 2022 FWMP.
21 CMP Condition 28 provides:
22 "[Thornburgh] shall abide at all times with the [Memorandum of
Page 96
I Understanding (MOU)] with BLM, dated September 28, 2005,
2 regarding mitigation of impacts on surrounding federal lands, to
3 include wildlife mitigation and long-range trail planning and
4 construction of a public trail system. The mitigation plan adopted by
5 [Thornburgh] in consultation with Tetra Tech, ODFW and the BLM
6 shall be adopted and implemented throughout the life of the resort."
7 Record 11728.
8 DCC 22.20.015(A) provides that, if any property is in violation of the
9 conditions of approval of any previous land use decisions, then the county must
10 not make any other land use decision. We understand petitioners to argue that the
11 2022 FWMP violates CMP Condition 28 and so the county erred in approving
12 the 2022 FWMP.
13 The county found that, after a successful challenge on LUBA appeal and
14 judicial review, CMP Condition 28 was invalidated because it improperly
15 removed the right to public participation in the county's decision on whether
16 Thornburgh's mitigation plan satisfied the no net loss standard. The county
17 replaced CMP Condition 28 with CMP Condition 37, which provides:
18 "[Thornburgh] shall demonstrate compliance with ACC
19 18.113.070(D) by submitting a wildlife mitigation plan to the
20 County as part of its application for [FMP] approval. The County
21 shall consider the wildlife mitigation plan at a public hearing with
22 the same participatory rights as those allowed in the CMP approval
23 hearing." Record 42.
24 Thornburgh responds, and we agree, that CMP Condition 28 is no longer
25 operative because it was invalidated and replaced by CMP Condition 37. Thus,
26 these assignments of error that rely upon CMP Condition 28 provide no basis for
27 remand and are denied.
Page 97
I COLW's second assignment of error and Lipscomb's second assignment
2 of error are denied.
3 XI. INTERNAL INCONSISTENCIES
4 (Gould Third Assignment of Error)
5 Gould argues that the decision is internally inconsistent and must be
6 reversed or remanded because the findings are inadequate. Gould's arguments
7 under this assignment of error are presented as a table with three columns for
8 "Findings," "Inconsistency," and "Additional Argument." This table ranges over
9 nine pages. To a large extent, the same findings are challenged in other arguments
10 presented by petitioners and intervenors -petitioners.
11 Thornburgh responds, and we agree, that Gould's third assignment of error
12 is Sca tersho and undeveloped,one ttr JLcJe t - I �- � 7l __ 7_.....__.
t t a n"A vve x- : L -it for fiat reason. Ue)'chu6es
13 Development v. Deschutes Cty., 5 Or LUBA 218, 220 (1982) ("It is not our
14 function to supply petitioner with legal theories or to make petitioner's case for
15 petitioner."); see also Sommer v. Josephine County, 54 Or LUBA 507, aff'd, 215
16 Or App 501, 170 Pad 8 (2007) (explaining that a responding party is not obliged
17 to respond to severely disjointed arguments presented in the assignment of error).
18 Gould's third assignment of error is denied.
19 XII. CONCLUSION AND DISPOSITION
20 We conclude that the 2022 FWMP is a substantial change with respect to
21 the required economic analysis and remand for further findings addressing DCC
22 18.113.070(C)(3) and (4). Or LUBA at (slip op at 79-80). We also
Page 98
conclude that the county's findings that the no net loss standard may be satisfied
2 by submittal to OWRD of an application for assignment, transfer, or cancellation
3 of a water right is not supported by adequate findings or substantial evidence.
4 Or LUBA at (slip op at 64-65).
5 The county's decision is remanded.
Page 99
I BEFORE THE LAND USE BOARD OF APPEALS
2 OF THE STATE OF OREGON
3
4 THE CONFEDERATED TRIBES OF THE WARM
5 SPRINGS RESERVATION OF OREGON,
6 Petitioner,
7
8 and
9
10 CENTRAL OREGON LANDWATCH,
11 ANNUNZIATA GOULD, and THOMAS BISHOP,
12 Intervenors -Petitioners,
13
14 vs.
15
16 DESCHUTES COUNTY,
17 Respondent,
18
19 and
20
21 CENTRAL RA'L LAND AND CATTLE COMPANY, LLC,
22 PINNACLE UTILITIES, LLC, and KAMERON DELASHMUTT,
23 Intervenors -Respondents.
24
25 LUBA No. 2023-038
26
27 ANNUNZIATA GOULD,
28 Petitioner,
29
30 and
31
32 THE CONFEDERATED TRIBES OF THE WARM
33 SPRINGS RESERVATION OF OREGON,
34 CENTRAL OREGON LANDWATCH,
35 PAUL J. LIPSCOMB, and THOMAS BISHOP,
36 Intervenors -Petitioners,
37
38 vs.
Page 1
1
2 DESCHUTES COUNTY,
3 Respondent,
4
5 and
6
7 CENTRAL LAND AND CATTLE COMPANY, LLC,
8 PINNACLE UTILITIES, LLC, and KAMERON DELASHMUTT,
9 Intervenors -Respondents.
10
11 LUBA No. 2023-039
12
13 CENTRAL OREGON LANDWATCH
14 Petitioner,
15
16 and
17
18 THE CONFEDERATED TRIBES OF THE WARM
19 SPRINGS RESERVATION OF OREGON,
20 ANNUNZIATA GOULD, and THOMAS BISHOP,
21 Intervenor 0-Pettttii%Gets,
22
23 vs.
24
25 DESCHUTES COUNTY,
26 Respondent,
27
28 and
29
30 CENTRAL LAND AND CATTLE COMPANY, LLC,
31 PINNACLE UTILITIES, LLC, and KAMERON DELASHMUTT,
32 Intervenors -Respondents.
33
34 LUBA No. 2023-041
35
36 FINAL OPINION
37 AND ORDER
38
Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Appeal on remand from the Court of Appeals.
Josh Newton represented petitioner The Confederated Tribes of the Warm
Springs Reservation of Oregon.
Jennifer Bragar represented petitioner Annunziata Gould and intervenors -
petitioners Paul J. Lipscomb and Thomas Bishop.
Carol Macbeth represented petitioner Central Oregon Landwatch.
David Doyle represented respondent.
J. Kenneth Katzaroff represented intervenors -respondents.
ZAMUDIO, Board Chair; RUDD, Board Member; participated in the
decision.
RYAN, Board Member, did not participate in the decision.
REMANDED
02/26/2025
You are entitled to judicial review of this Order. Judicial review is
governed by the provisions of ORS 197.850.
Page 3
I
Opinion by Zamudio.
2 NATURE OF THE DECISION
3 Petitioners appeal a board of county commissioners decision approving
4 modification of a destination resort final master plan.
5 FACTS
6 This matter is on remand from the Court of Appeals. Confederated Tribes
7 of Warm Springs v. Deschutes Cty., 332 Or App 361, 550 P3d 443 (2024). We
8 set out the facts in our prior decision and do not restate them here. Confederated
9 Tribes of Warm Springs v. Deschutes County, LUBA Nos 2023-038/039/041 (Jan
10 12, 2024).
11 TRIBE FIRST ASSIGNMENT OF ERROR
12 The Confederated Tribes of the Warm Springs Reservation (the Tribe),
13 argued that the challenged decision improperly construes applicable law by
14 failing to address whether the 2022 Fish and Wildlife Management Plan violates
15 the Treaty with the Tribes of Middle Oregon, dated June 25, 1855. ' We agreed
16 with intervenors -respondents that that issue was not raised during the local
17 proceeding and was therefore waived. LUBA Nos 2023-038/039/041 (slip op 19-
18 23). On judicial review, the Court of Appeals agreed with the Tribe that that issue
19 was raised below with sufficient specificity so that the county was obligated to
' Our reference to the Tribe mirrors the Tribe's self -reference in their petition
for review.
Page 4
I make findings addressing it. The Tribe's first assignment of error is sustained for
2 the reasons set out the court's opinion.
3 The court's opinion does not require us to revisit the disposition of any
4 other assignment of error.
5 The county's decision is remanded.
Page 5
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BBK
BEST BEST & KRIEGER LLP
ATTORNEYS AT LAW
May 7, 2025
VIA E-MAIL: JACOB.RIPPER@DESCHUTES.ORG
Deschutes County Board of Commissioners
c/o Jacob Ripper, Principal Planner
Deschutes County Community Development, Planning Division
P.O. BOX 6005
Bend, OR 97708-6005
Re: 247-25-000229-A, Remand Hearing from Land Use Board of Appeals;
Original File No. 247-22-000678-MC; Associated Appeal File Nos.
247-22-000984-A and 247 23-000003-A
Dear Commissioners:
We represent the Confederated Tribes of the Warm Springs Reservation of Oregon,
a sovereign and federally recognized Indian tribe ("Tribe"). The Tribe is the legal successor -in -
interest to the Indian signatories of the Treaty of June 25, 1855, with the Tribes of Middle Oregon,
12 Stat. 963 (111855 Treaty"). On behalf of the Tribe, we submit this written argument for the
recora i U-Cccord with the Revised NTM; of Public Hearing dated Arr;l 17 �025
u ... uvvv�uu.�vv b, .-. r-=. .
I. INTRODUCTION
The Oregon Land Use Board of Appeals ("LUBA") has remanded the Board of County
Commissioners ("Board") decision, dated April 17, 2023, replacing the 2008 Fish and Wildlife
Management Plan ("2008 FWMP") for Thornburgh Resort with the 2022 Fish and Wildlife
Management Plan ("2022 FWMP"). LUBA has remanded the decision to Deschutes County to
consider three issues, including whether the 2022 FWMP violates the fishing clause of the
1855 Treaty.
To show that the 2022 FWMP does not violate the 1855 Treaty, Applicant must establish
that the 2022 FWMP will not cause a net loss of fish habitat necessary to support a harvestable
population of each treaty -protected fish species affected by Applicant's proposed groundwater
pumping. To meet this standard, Applicant must show by substantial evidence: (1) the presence
and current status of the treaty -protected fish resources that may be affected by the proposed
groundwater pumping; (2) the effects of the proposed groundwater pumping on the treaty -
protected resources; and (3) the proposed mitigation measures will completely mitigate the impact
on treaty -protected fish resources caused by the proposed groundwater pumping. For the reasons
that follow, Applicant has failed to meet its burden. The Tribe requests that the Board deny the
application.
Best & Krieger LLP 1 360 SW Bond Street, Suite 400, Bend, Oregon 97702
Phone: (541) 382-3011 1 Fax: (541) 388-54101 bbklaw.com
12805.73601 \43690201.6
Deschutes County Board of Commissioners
May 7, 2025
Page 2
II. BACKGROUND'
A. The Tribe is a Sovereign Co -Manager of the Fish Resources of the Deschutes
River Basin, Which Are Protected by The 1855 Treaty.
The Tribe is a federally recognized, sovereign Indian tribe and the legal successor -in -
interest to the Indian signatories of the 1855 Treaty. Rec. 004294; 004308-004318. Pursuant to
the 1855 Treaty, the Tribe ceded certain rights to approximately 10 million acres of land ("ceded
lands") to the United States and reserved the Warm Springs Reservation for the exclusive use and
occupation of the Tribe and its members as a permanent homeland. Rec. 004295. The Warm
Springs Reservation comprises approximately 640,000 acres, most of which are located in the
Deschutes Basin. Id.
The 1855 Treaty recognizes the Tribe as a sovereign entity, possessing inherent rights to
provide for the general welfare of its people, including the right to manage natural resources for
their benefit. Rec. 004295. The 1855 Treaty expressly reserves rights to the Tribe for its members
to go outside (or "off') the Warm Springs Reservation to fish, hunt, gather roots and berries, and
pasture livestock on any lands and waters, both in the ceded lands and beyond, that its members
had used prior to the signing of the 1855 Treaty. Id. The Tribe's rights under the 1855 Treaty
include a legally enforceable right to the protection of fish habitat because the treaty fishing right
would be "worthless without harvestable fish." Rec. 004297 (citing United States v. Washington,
853 F3d 946, 965 (9th Cir 2017), aff'd by an equally divided court, 138 S Ct 1832 (2018)).
The substantial majority of the Deschutes Basin, including the Thornburgh Resort, lies
within the Tribe's ceded lands, or those lands which the Tribe has used and occupied since time
immemorial. Rec. 004295; 004320 (map of the Tribe's ceded lands). The Tribe has legally
enforceable, treaty -protected rights for the vast majority of the Deschutes Basin, including the
protection of fish habitat therein. Rec. 004295. For example, the Tribe, the United States, and the
State of Oregon have reached an intergovernmental water rights settlement agreement regarding
the Tribe's federally reserved Indian water rights for water arising on or adjacent to the Warm
Springs Reservation ("CTWS Water Rights Settlement Agreement" or "WRSA"). Rec. 004345-
004375.
The Tribe also has significant proprietary interests in the Deschutes Basin. As an example,
it owns and operates, together with Portland General Electric Company ("PGE"), the Pelton Round
Butte Hydroelectric Project ("Pelton Project" or "Project"). Rec. 004190-004225. The Pelton
Project is located on the Deschutes River near Madras, Oregon. Id. On June 21, 2005, the Federal
Energy Regulatory Commission ("FERC") issued an order approving the Relicensing Settlement
' References to "Rec." are to the Amended County Record submitted in the LUBA
proceedings, a copy of which is contained on a USB drive enclosed with this written argument.
For the Board's convenience, the Tribe supplies record citations throughout this written argument.
These citations are not intended to limit the Tribe's reliance on the evidence in the whole record,
and the lack of a citation does not signify the absence of evidence in the record.
12805.73601\43690201.6 Best & Krieger LLP
Deschutes County Board of Commissioners
May 7, 2025
Page 3
Agreement and issuing a new 50-year license to the Tribe and PGE ("2005 FERC License"). Rec.
004296;004076-004187.
The 2005 FERC License requires the Tribe and PGE to implement a Fish Passage Plan.
Rec. 004296; 004076-004187; 004088; 004296. Since the issuance of the 2005 FERC license, the
Tribe and PGE have together spent (either directly or through the Pelton Round Butte Fund) over
$175 million on the Fish Passage Plan and other fisheries enhancement projects throughout the
Deschutes Basin. Rec. 004296.
The Fish Passage Plan considers, in particular, the Middle Columbia River ("MCR")
steelhead. The MCR steelhead have been listed as threatened since 1999. Rec. 004297. The goal
of the MCR steelhead recovery plan is removal of the steelhead from the threatened species list.
Id. The recovery plan recognizes that successful reintroduction of the MCR steelhead above the
Pelton Project could contribute substantially to recovery of the MCR steelhead by reestablishing a
population in Whychus Creek and the Crooked River, both tributaries to the Deschutes River. Id.
The ultimate success of the Fish Passage Plan has a direct bearing on the recovery of the MCR
steelhead and the re-establishment of treaty -protected self-sustaining harvestable runs of
anadromous fish species such as the Chinook salmon, MCR steelhead, and sockeye salmon above
the Pelton Project. Rec. 004297.
B. The Deschutes Basin Habitat Conservation Plan
The reintroduction of salmon and MCR steelhead above the Pelton Project began in 2007
when the Tribe and Oregon Department of Fish and Wildlife ("ODFW"), as co -managers, began
releasing juvenile steelhead into Whychus Creek, the Deschutes River, and the Crooked River.
Rec. 004297. Because the MCR steelhead are an Endangered Species Act ("ESA") listed species,
their reintroduction above the Pelton Project prompted eight irrigation districts (collectively,
"Districts") and the City of Prineville ("Prineville") to submit an application for a multi -species
habitat conservation plan under the ESA, referred to as the Deschutes Basin Habitat Conservation
Plan ("DB HCP"). Rec. 004237. The Districts and Prineville prepared the DB HCP to support the
issuance of incidental take permits by the U.S. Fish and Wildlife Service ("USFWS") and National
Marine Fisheries Service ("NMFS"). Id. These incidental take permits apply to the Districts' and
Prineville's use of waters of the Deschutes River and its tributaries where their activities have the
potential to incidentally harm one wildlife species (Oregon spotted frog) and two fish species
(MCR steelhead and bull trout) that are currently listed as threatened under the ESA. Id.
The DB HCP took more than 12 years to complete and was finalized in October 2020. Rec.
004298. This deliberative process was consistent with ESA regulations intended to facilitate "well
informed conservation measures to support the reintroduction effect in the Upper Deschutes
Basin." Rec. 004297 (citing 78 Fed Reg 2893 (Jan. 15, 2013)). The DB HCP "covered lands"
include the upper Deschutes River, the middle Deschutes River, the lower Deschutes River,
Whychus Creek, and the Crooked River as shown on the following map:
12805.73601\43690201.6 Best & Krieger LLP
Deschutes County Board of Commissioners
May 7, 2025
Page 4
Deschuos Oasin HO FINAL Chapt i — lx"utWe Swnt nary
fygnere F-, Map of the Doiw.ex ssln sti ng kse fs seed waders cw�x+ed by efi�40% ease iaab st
C nsematkm Plan.
Rec. 00423 8.
12805.73601\43690201.6 Best & Krieger LLP
Deschutes County Board of Commissioners
May 7, 2025
Page 5
With respect to MCR steelhead populations in the Deschutes Basin, the DB HCP identifies
"major limiting factors" to their successful reintroduction as "degraded floodplain and channel
structure, degraded riparian communities, water quality (temperature, chemical contaminants and
nutrients), altered hydrology, altered sediment routing, blocked and impaired fish passage, and
limited spawning habitat." Rec. 004245. "Key threats" include "land use practices and irrigation
systems." Id. Land use in particular is identified as having the "most key concerns of any threat
category." Id. The lower Crooked River is of "particular importance to the steelhead
reintroduction," and "operation of irrigation systems" are a "land use activity that negatively
impacts summer steelhead by altering seasonal hydrographs and increasing summer water
temperatures" in that waterbody. Rec. 004245; 004254.
In October 2020, USFWS released the Final Environmental Impact Statement ("FEIS") for
the DB HCP. Rec. 004262. On the Crooked River, the FEIS identifies "adverse irrigation season
effects in some reaches on habitat for bull trout, steelhead trout, and spring Chinook salmon." Rec.
004286. With respect to the DB HCP's anticipated effect on the reintroduction of salmon and
steelhead into habitats upstream of the Pelton Project, the FEIS concludes that the adverse
irrigation season effects on the Crooked River "could delay or prevent reintroduction success and
potentially result in reintroduction failure" and that "[o]verall, * * * effects would be adverse." Id.
In December 2020, USFWS released its biological opinion and issued its record of decision
approving the DB HCP and the issuance of an incidental take permit for bull trout and the spotted
frog. Rec. 004299. About two years later, in December 2022, NMFS released its biological opinion
addressing :ts proposed '.sssuanee of an in-idlental take permit for implementation of the DB HCP
and the U.S. Bureau of Reclamation's ("USBOR") continued operation of the Deschutes Basin
Project.2 Rec. 003849. NMFS has since issued a permit to the Districts and Prineville authorizing,
subject to certain conditions, the incidental take of MCR steelhead and sockeye salmon in
connection with the implementation of the DB HCP. Rec. 004048.
C. Procedural Background.
In August 2022, Applicant submitted a land use application to amend the "Thornburgh
Resort CMP/FMP/FWMP." Rec. 013555-013557. Applicant seeks to revise the FWMP by
replacing the previously approved 2008 FWMP with a new 2022 FWMP. Rec. 013564. According
to Applicant, the 2022 FWMP is intended to assure that the Thornburgh Resort's water use will
result in "no net loss or degradation of fish resources" as mandated by DCC 18.113.070(D)
(requiring that negative impacts on fish resources be completely mitigated so that there is no net
loss or net degradation of the resource). Id.
A Deschutes County Hearings Officer conducted a public hearing on October 24, 2022.
Deschutes County Staff Memorandum, dated April 7, 2025 ("April 7 Staff Memo"). On December
19, 2022, the Hearings Officer denied the Applicant's request. Id. Applicant filed an appeal on
2 USBOR's Deschutes Basin Project provides water for agriculture in Central Oregon and
consists of dams, storage reservoirs, and water conveyance and withdrawal systems. Rec. 000655.
12805.73601\43690201.6 Best & Krieger LLP
Deschutes County Board of Commissioners
May 7, 2025
Page 6
Friday, December 30, 2022 (ref. 247-22-000984-A), and Annunziata Gould filed an appeal on
Tuesday, January 3, 2023 (ref. 247-23-000003-A). Id. The Board conducted a public hearing on
February 1, 2023. Id. The Board held deliberations on Wednesday, March 29, 2023, and voted 2-
1 to approve Applicant's request. Id. The Board's final decision was approved and mailed on April
17, 2023 ("2023 Decision"). Id.
On January 12, 2024, LUBA issued its Final Opinion and Order remanding the Board's
decision back to the Board for further review (LUBA Nos. 2023-038, 2023-039, 2023-041).
April 7 Staff Memo. On May 1, 2024, the Oregon Court of Appeals reversed and remanded to
LUBA for further review on the Tribe's petition. Id. The Court of Appeals concluded:
"the Tribe adequately articulated in its opening brief before LUBA
that the treaty -protected fishery resource is a resource to which there
can be `no net loss' or degradation under DCC 18.113.070(D), and
that any net loss to the Tribal fishery resource is a violation of DCC
18.113.070(D) and the 1855 Treaty."
Confederated Tribes of the Warm Springs Reservation of Oregon v. Deschutes County,
332 Or App 361, 386, 550 P3d 443 (2024). The Court of Appeals further concluded that the Tribe
"adequately preserved" and "presented to LUBA its arguments concerning the relationship
between the Tribe's treaty rights and the `no net loss' standard" and that LUBA "erred in
concluding otherwise." Id. On February 25, 2025, LUBA issued a final opinion and order,
remanding the Board's decision to address whether the 2022 FWMP violates the 1855 Treaty.
April 7 Staff Memo.
On April 7, 2025, the Applicant requested that the Board initiate these remand proceedings.
Kameron DeLashmutt Letter, dated April 7, 2025 ("DeLashmutt April 7 Letter"). Applicant
requested that the Board not reopen the record with respect to that portion of LUBA's remand
addressing whether any net loss to the Tribe's treaty -protected fish resources is violation of DCC
18.113.070(D) and the 1855 Treaty. Id. On April 10, 2025, the Chairman of Tribal Council for the
Tribe, Jonathan Smith Sr., sent a letter to the Board raising two important issues affecting the
Tribe's due process issues. Chairman Smith Letter, dated April 10, 2025 ("Chairman Smith April
10 Letter").
Chairman Smith first noted that the proposed date for the May 7, 2025 remand hearing was
set without consulting the Tribe, which is the same week that the Tribe is seating the 30th Tribal
Council. Chairman Smith April 10 Letter. Chairman Smith advised the Board that it would be
difficult for the Tribe to prepare for, and participate in, the hearing, in a manner befitting its
importance to its people. Id. As a matter of inter -governmental comity, the Tribe asked that the
Board consider rescheduling the hearing to the first week of June 2025 so that the Tribe could
adequately prepare and participate in the remand hearing. Id. The Board rejected this request.
Chairman Smith also observed that the Court of Appeals provided the following instruction
for this remand hearing:
12805.73601\43690201.6 Best & Krieger LLP
Deschutes County Board of Commissioners
May 7, 2025
Page 7
"we highlight that remand will allow an opportunity for the Tribe to
present evidence of indigenous expertise and knowledge for the
board's consideration that the Tribe asserts it did not have adequate
time to present due to its late involvement in the proceedings."
Chairman Smith April 10 Letter (citing Confederated Tribes of Warm Springs Reservation of
Oregon, 332 Or App at 387). Chairman Smith asked the Board to exercise its discretion to modify
its hearing time limits and to allow 30 minutes for testimony to be provided by the Tribe consistent
with the court's clear direction. Id. He also requested that the Board re -open the record to receive
the evidence that the Tribe is allowed to present on remand. Id. The Board rejected the Tribe's
request to reopen the record with respect to whether the 2022 FWMP violates the 1855 Treaty.
Revised Notice of Public Hearing, dated April 17, 2025; Order No. 2025-014.
III. LEGAL ARGUMENT
All parties to the remand proceeding are permitted to submit written argument to the record.
Revised Notice of Public Hearing, dated April 17, 2025. "Argument" means "assertions and
analysis by a party regarding the satisfaction or violation of legal standards." DCC 22.04.020. The
Tribe's argument follows.
A. Oregon Land Use Standards Generally Applicable to This Remand
Proceeding.
In order to approve a destination resort, the Board must find, among other things, from
substantial evidence in the record that "[a]ny negative impact on fish and wildlife resources will
be completely mitigated so that there is no net loss or net degradation of the resource."
DCC 18.113.070(D). In all local land use proceedings, including proceedings on remand, the
burden of proof is on the applicant. DCC 22.24.050; see also Wilson v. Washington Cnty.,
63 Or LUBA 314 (2011) (applicant bears burden of proof showing compliance with applicable
approval standards). In general, the Board is obligated to receive "[a]ll relevant evidence."
DCC 22.24.060. "Evidence" means facts, documents, data or other information offered to
demonstrate compliance or noncompliance with the standards believed to be relevant to the
decision. The Board reviews evidence under the "substantial evidence" standard, which is
evidence a reasonable person would rely on in drawing inferences and reaching a decision. City of
Portland v. Bureau of Labor & lndus., 298 Or 104, 119, 690 P2d 475 (1984).
12805.73601\43690201.6 Best & Krieger LLP
Deschutes County Board of Commissioners
May 7, 2025
Page 8
The Board must conduct a hearing on any remanded decision, the scope of which is
determined in accordance with the applicable provisions of DCC 22.34 and state law.
DCC 22.34.030(A); see also ORS 197.797 (addressing local quasi-judicial land use hearing
procedures). The Board must review those issues that LUBA or the Court of Appeals required to
be addressed. DCC 22.34.040(A). The Board has the discretion to reopen the record in instances
in which it deems appropriate. Id. The Board may allow a remanded land use application to be
modified to address issues involved in the remand to the extent that such modifications would not
substantially alter the proposal and would not have a significantly greater impact on surrounding
neighbors. DCC 22.34.040(B). Any greater modification would require a new application. Id. If
additional testimony is required to comply with the remand, parties may raise new, unresolved
issues that relate to new evidence directed toward the issue on remand. DCC 22.34.040(C).
B. Preservation of Error and Reservation of Rights.
The Tribe provides'notice to the Board and to the other participants in this proceeding that
it believes that the Board erred in not re -opening the record as required by the Court of Appeals in
connection with its consideration of whether the 2022 FWMP violates the 1855 Treaty. The Tribe
expressly reserves its right to assign error of this issue in any appeal to LUBA. See Confederated
Tribes of Warm Springs Reservation of Oregon, 332 Or App at 385 (preservation requires no more
than "fair notice"). The Tribe further expressly reserves all other rights, including, but not limited
to, the right to appeal any issue for which it has provided "fair notice" to the Board in these remand
proceedings.
The Tribe also expressly reserves, in the event of an adverse decision by the Board in this
remand proceeding, its rights to adjudicate all issues of federal law in an appropriate federal court.
See generally England v. Louisiana State Bd. of Med. Examiners, 375 US 411 (1964). This
includes, but is not limited to, whether any approval of the 2022 FWMP violates the 1855 Treaty.
C. The Board Cannot Approve the 2022 FWMP Unless Applicant Establishes
That It Does Not Violate the Fishing Clause of the 1855 Treaty.
1. Indian Tribes Are Constitutionally Recognized Sovereigns.
Indian tribes are "distinct, independent political communities, retaining their original
natural rights" in matters of self-government. Santa Clara Pueblo v. Martinez, 436 US 49, 55
(1978) (quoting Worcester v. Georgia, 31 US 515, 519 (1832)). Indian tribes possess sovereignty
predating the founding of this nation. Id. at 56 (tribes remain "separate sovereigns pre-existing the
Constitution"). Because of their sovereign status, the Constitution separately recognizes "Indian
tribes" together with "foreign Nations" and the "several States." US Const, Art I, § 8. But Indian
tribes are not foreign nations or States; they are "domestic dependent nations that exercise inherent
sovereign authority." Michigan v. Bay Mills Indian Cmty, 572 US 782, 788 (2014) (quoting
Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 US 505, 509 (1991)).
Indian tribes "`retain' their historic sovereign authority" in every respect "`unless and until'
Congress acts" otherwise. Id. (quoting United States v. Wheeler, 435 US 313, 323 (1978)).
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2. The 1855 Treaty Is The "Supreme Law of the Land" and Must Be
Interpreted in the Tribe's Favor.
The 1855 Treaty is federal law, 12 Stat 963, and is the "supreme law of the land." US Const,
Art VI, § 2. The interpretation of the 1855 Treaty is a matter of federal law. Confederated Tribes
of the Warm Springs Reservation, 332 Or App at 381 (citing State v. Begay, 312 Or App 647, 652,
495 P3d 732 (2021) and Felix Cohen, Cohen's Handbook of Federal Indian Law § 2.01(l), 109
(Nell Jessup Newton ed. 2012)). For nearly two centuries, federal courts have used certain Indian
canons of construction to aid in the resolution of disputes involving Indian tribes. See, e.g.,
Worcester, 31 US at 551-57.
The Indian canons of construction are briefly summarized as follows:
"[T]reaties, agreements, statutes, and executive orders [are to] be
liberally construed in favor of the Indians and that all ambiguities
are to be resolved in their favor. In addition, treaties and agreements
are to be construed as the Indians would have understood them, and
tribal property rights and sovereignty are preserved unless
Congress's intent to the contrary is clear and unambiguous."
Felix Cohen, Cohen's Handbook of Federal Indian Law § 2.02, at 113-14 (2012); Herrera v.
Wyoming, 587 US 329 (2019). The canons are of a piece with other fundamental principles of
interpretation that the Supreme Court used for centuries, See, e.g.; Wore ster, 31 T TV- 51 5; see also
Washington v. Washington State Com. Passenger Fishing Vessel Assoc., 443 US✓658 (1979).
Narrow, hyper -technical, post -hoc legal arguments to limit or erase promises made in Indian
treaties must be rejected. Jones v. Meehan, 175 US 1, 11 (1899). The Supreme Court has
consistently relied upon the Indian canons to resolve ambiguities in legal instruments involving
Indian tribes and to ensure that tribal Treaty rights are not improperly infringed upon or abrogated
by state or federal bodies that do not have legal authority. Cf. Washington State Dep't of Licensing
v. Cougar Den, Inc., 586 US 347 (2019) (holding that a state regulatory body cannot infringe upon
or abrogate a tribal treaty right). In this way, the Indian canons of construction play an important
role in protecting constitutional concepts of federalism and balance of powers.
3. The Fishing Clause of the 1855 Treaty Includes a Right to a
Harvestable Population of Treaty -Protected Fish and Habitat
Protection Necessary to Sustain Those Fish.
In the 1850s, Isaac Stevens, Governor and Superintendent of the Washington Territory,
and Joel Stevens, the Superintendent of Indian Affairs, negotiated a number of treaties with Indian
tribes in the Pacific Northwest. See, e.g., 1855 Treaty (Rec. 004308-004318); Treaty with the
Walla Walla, June 9, 1855, 12 Stat 945; Treaty with the Yakamas, June 9, 1855, 12 Stat 951.
Pursuant to those treaties, the Indian tribes ceded certain rights to lands in the Pacific Northwest
of the United States. United States v. Washington, 853 F3d at 954. In exchange, the tribes reserved
defined areas for their exclusive use and occupation, which are known as "reservations." See, e.g.,
1855 Treaty, Art 1 (Rec. 004308).
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Pacific Northwest tribes are predominantly a fishing culture. Since time immemorial, those
tribes have relied upon salmon and other fish species for subsistence, trade, and cultural purposes.
See Washington v. Washington State Commercial Passenger Fishing Vessel Assn, 443 US 658,
664-65 (1979); Sohappy v. Smith, 302 F Supp 899, 905-06 (D Or 1969). Given the importance of
fish to the Indian tribes, most of the treaties contained nearly identical language guaranteeing a
right to the Indian tribes and their members to continue fishing at the traditional locations that the
Indians had used since time immemorial. United States v. Washington, 853 F3d at 954. Those
"fishing clauses" guaranteed the "right of taking fish, at all usual and accustomed" grounds and
stations.3 Id.; see also 1855 Treaty, Art 1 (Rec. 004308).
In 1905, the United States Supreme Court issued a landmark decision in United States v.
Winans, which addressed the treaty fishing rights in the Treaty with the Yakamas. 198 US 371
(1905). In the now famous passage, the Supreme Court observed:
"The right to resort to the fishing places in controversy was a part of
larger rights possessed by the Indians, upon the exercise of which
there was not a shadow of impediment, and which were not much
less necessary to the existence of the Indians than the atmosphere
they breathed."
Id. at 381 (emphasis added). The Supreme Court construed the treaty not as a "grant of rights to
the Indians," but, rather, as a "reservation" by them. Id.
The twentieth century continued to see litigation regarding the scope and attributes of tribal
reserved rights to take fish contained in the treaties. For example, in 1968, the Tribe, the United
States, and other treaty tribes brought action seeking declaratory relief with respect to the State of
Oregon's authority to regulate Indian fishing. Sohappy, 302 F Supp 899. Similarly, in 1970, the
United States, as trustee for certain treaty tribes and on its own behalf, commenced a federal court
action against the State of Washington, seeking declaratory and injunctive relief based on the
fishing clause of the treaties. United States v. Washington, 853 F3d at 958.
In United States v. Washington, the district court concluded that, the treaty -reserved right
to take fish guaranteed the Indian tribes the right to take "up to fifty percent of the harvestable
population of fish." Id. And, in 2001, the Indian tribal parties and United States requested that the
district court "`enforce a duty upon the State of Washington to refrain from constructing and
maintaining culverts under State roads that degrade fish habitat so that adult fish production is
reduced."' Id. at 960. The court entered judgment in favor of the Indian tribes and the United
States, holding the tribes' treaty -reserved right to take fish "impose[d] a duty upon [Washington]
to refrain from building or operating culverts * * * that hinder fish passage and thereby diminish
the number of fish that would otherwise be available for [t]ribal harvest." Id. at 961.
3 The fishing clauses also guaranteed the exclusive right to take fish within the reservations.
See, e.g., 1855 Treaty, Art. 1.
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The Ninth Circuit affirmed, concluding that the Indian treaties contain a right to habitat
protection; the Court inferred a treaty promise that the "number of fish would always be sufficient
to provide a `moderate living' to the [t]ribes" based on the unremarkable syllogism that the tribes'
"right of access to their usual and accustomed fishing places would be worthless without
harvestable fish." United States v. Washington, 853 F3d at 965. Stated differently, the Ninth Circuit
concluded that the treaty -reserved right to take fish necessarily includes an implied right to have
fish to take—i.e., a right to a harvestable population of fish and to protect the habitat necessary to
sustain those fish. Other federal courts have since held that the "moderate living" standard includes
amounts of instream water "at least equal to" what is needed to satisfy any applicable ESA
obligations for listed fish species that are also protected by Indian treaties. Baley v. United States,
942 F3d 1312, 1337 (Fed Cir 2019).
Based on the foregoing, the 1855 Treaty secures to the Tribe and its members a right to a
harvestable population of treaty -protected fish in the Deschutes Basin and to protect the habitat
necessary to sustain those fish. See also Confederated Tribes of the Warm Springs Reservation,
332 Or App at 382 (citing United States v. Washington, 853 F3d 946). The amount of instream
water necessary to sustain that habitat is "at least equal to" what is needed to satisfy any applicable
Endangered Species Act (ESA) obligations for listed fish species. Id. (citing Baley, 942 F3d 1312).
4. DCC 18.113.070(D) Must Be Construed in Conformity with The
1855 Treaty.
A rt1.._.µ_._ law regi�ire� the Board t� observe the 1 R Treaty. So.�iappy, 302 F Supp at
905; Confederated Tribes of the Warm Springs Reservation, 332 Or App at 382. This means that
the Board is obligated to construe its code, including DCC 18.113.070(D), in conformity with the
1855 Treaty. See Anthony v. Veatch, 189 Or 462, 220 P2d 493 (1950) (Oregon law must be
interpreted in conformity with 1855 Treaty). To do so, the Board must avoid violating the Tribe's
treaty -reserved rights to take fish throughout the Deschutes Basin. Cf City of Edmonds v. Oxford
House, Inc., 514 US 725 (1995) (local governments may not apply land use regulations in a manner
that violates federal law); Foland v. Jackson County, 61 Or LUBA 264, 307 (2010) (recognizes
that LUBA's jurisdiction extends to determining whether land use decision complies with federal
law). Here, the Board must not interpret its code in a manner that results in a diminishment of the
fish habitat that is necessary to sustain harvestable populations of treaty -protected fish species
present in the Deschutes River Basin. See generally United States v. Washington, 853 F3d at 965.
Similar to the 1855 Treaty, DCC 18.113.070(D) is a habitat -based standard. Confederated
Tribes of the Warm Springs Reservation, 332 Or App at 375 (citing Gould v. Deschutes County,
233 Or App 623, 227 P3d 758 (2010) ("Gould VI" )). Unlike the County ordinance, however, the
1855 Treaty habitat protection standard is applied on a species -by -species basis. Cf. Gould VI,
233 Or App at 631-34 ("no net loss" standard satisfied without showing that each individual
species will be maintained). Like ESA -listed species, fish species protected by the 1855 Treaty are
not fungible; rather, they are protected on a species -by -species basis. Construing DCC
18.113.070(D) in conformity with the 1855 Treaty requires Applicant to establish no net loss of
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fish habitat necessary to support a harvestable population of each treaty -protected fish species.4
For the reasons set forth below, Applicant has failed to carry its burden of proof to establish that
the 2022 FWMP does not violate the fishing clause of the 1855 Treaty.
D. Applicant Has Failed to Show That The 2022 FWMP Does Not Violate the
Fishing Clause of the 1855 Treaty.
When DCC 18.113.070(D) is construed in conformity with the 1855 Treaty, the land use
standard requires Applicant to establish that the 2022 FWMP will not cause a net loss of fish
habitat necessary to support a harvestable population of each treaty -protected fish species. To meet
this standard, Applicant must show, by substantial evidence: (1) the presence and current status of
the treaty -protected fish resources that may be affected by the proposed groundwater pumping;
(2) the effects of the proposed groundwater pumping on the treaty -protected resources; and (3) the
proposed mitigation measures will completely mitigate the impact on treaty -protected fish
resources caused by the proposed groundwater pumping. For the reasons that follow, Applicant
has failed to meet its burden. See City of Portland, 298 Or at 119 (setting forth substantial evidence
standard). The Board must, therefore, deny the application.5
1. The record contains no substantial evidence of the presence and
current status of all affected treaty -protected fish resources.
Applicant's fisheries expert is Lucius Caldwell, Ph.D., with Four Peaks Environmental
Science and Data Solutions. Dr. Caldwell prepared several memoranda that are Dart of the record.
Rec. 000592-000598; 000906-000954; 007240-007244; 012295-012308; 012424-012427; and
012717-012730. In his first memorandum, dated October 21, 2022, and titled "Evaluation of Fish
Habitat Impacts of Proposed Groundwater Pumping at Thornburgh Resort" ("Oct. 21 Memo"),
Dr. Caldwell defined the Thornburgh Resort study area to include (a) the Upper Deschutes River
between Bend and its confluence with the Crooked River and (b) Whychus Creek. Rec. 012718.
4 Unlike when it is harmonizing various provisions of its own code, the Board is not entitled
to deference when construing its code in conformity with the 1855 Treaty. This is because Indian
treaty interpretation is a matter of federal law. See Confederated Tribes of the Warm Springs
Reservation, 332 Or ADD at 381. And, as set forth above, all ambiguities must be resolved in favor
of the Tribe.
This is an issue of first impression for the Board, because it has not previously considered
whether the 2022 FWMP violates the fishing clause of the 1855 Treaty. Applicant is estopped
from arguing otherwise on remand because Applicant argued before the Court of Appeals that the
Tribe failed to preserve the issue. See Confederated Tribes of the Warm Springs Reservation of
Oregon, 332 Or App at 381-86 (setting forth Applicant's preservation argument). Further, the fact
that the Court of Appeals rejected the Tribe's second assignment of error, which addressed the
Tribe's substantial evidence challenge to the 2023 Decision, does not bar the Tribe from litigating
for the first time on remand whether the 2022 FWMP violates the fishing clause of the 1855 Treaty.
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Dr. Caldwell did not, initially, include the Crooked River in his study area.6 Id. He identified
redband trout, summer steelhead, spring Chinook salmon, bull trout, brown trout, and mountain
whitefish as species present within the study area. Rec. 012722. Dr. Caldwell also observed that
Pacific lamprey were in the study area but had been extirpated by the Pelton Project. Id.
Dr. Caldwell focused his evaluation on redband trout, summer steelhead, spring Chinook salmon,
and bull trout; he did not consider other species, including Pacific lamprey. Id. Moreover, the Oct.
21 Memo did not address whether any of the species, including, but not limited to, Pacific lamprey,
were protected by the 1855 Treaty or whether Dr. Caldwell was even aware of the presence of
treaty -protected fish resources. Id.
Dr. Caldwell did not update his fish "presence" assessment after Austin Smith, Jr., the
General Manager of the Tribe's Branch of Natural Resources, submitted written testimony in 2023.
Rec. 000653-000656; 001817-001822; 003848-004413.7 Dr. Caldwell did not do so even though
Mr. Smith clearly and repeatedly stated that the Tribe possessed legally -protected treaty -reserved
rights to take fish throughout the Deschutes Basin, the scope of which included a right to have fish
to take. Rec. 004297; 000654. Mr. Smith's testimony included a copy of the Fish Passage Plan for
the Pelton Project. Rec. 004076-004187.
The objectives of the Fish Passage Plan are:
• To contribute to recovery efforts for the ESA -listed MCR steelhead;
• F_OAlish self-sustaininu hnrve.ctahle nnnnlatinnc of summer steelhead spring -run.
Chinook salmon, and sockeye salmon in the Deschutes River Basin to fully utilize
the available habitat and production capability;
• Provide access to and through Pelton Project waters for Pacific lamprey, summer -
run / fall -run Chinook salmon, rainbow (redband) trout, bull trout, and other native
fish species;
6 Dr. Caldwell later included the Crooked River in the study area for purposes of evaluating
the fish habitat impacts of the proposed groundwater pumping in the 2022 FWMP. See, e.g.,
Rec. 012424-012425.
Due to the lack of notice to the Tribe, Mr. Smith was not able to provide a complete
inventory of the presence and status of all treaty -protected fish resources affected by Applicant's
proposed groundwater pumping. The Court of Appeals understood this record deficiency and
directed that this remand "allow an opportunity for the Tribe to present evidence of indigenous
expertise and knowledge" regarding its treaty -protected fish resources. Confederated Tribes of the
Warm Springs Reservation, 332 Or App at 461. Despite the clear direction, the Board did not
reopen the record, and the Tribe expressly reserves its rights to assign error to this issue in any
appeal to LUBA.
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• Provide access to habitat to support a self-sustaining fishery; and
Support the contribution of salmon, steelhead, and other native species to a healthy
ecosystem.
Rec. 004088. These objectives show that Dr. Caldwell's inventory of fish species and associated
habitat analysis is incomplete. Upon reviewing the Fish Passage Plan, Dr. Caldwell should have
updated his analysis to include, at a minimum, sockeye salmon, fall Chinook salmon, and Pacific
lamprey, given that an objective of the Fish Passage Plan is to provide access to support a self-
sustaining fishery for those species. Dr. Caldwell's updated analysis should have included
specificity and context related to each treaty -protected species, life stage, and age class habitat
needs as they differ spatially and temporally within the study area. It did not.
Despite the court's clear direction, Applicant requested, and the Board agreed, not to
reopen the record to allow the Tribe to present evidence of its treaty -protected fish resources
affected by the groundwater pumping. Simply put, the record does not contain evidence of all of
the affected treaty -protected fish species. Applicant, therefore, cannot meet its burden of proof to
show by substantial evidence that 2022 FWMP will not cause a net loss of fish habitat necessary
to support a harvestable population of each treaty -protected fish species affected by its
groundwater pumping. The application must be denied for this reason alone.
2. The record contains no substantial evidence establishing the current
condition of the affected treaty -protected fish resource.-.
To assess whether the 2022 FWMP violates the fishing clause of the 1855 Treaty,
Applicant must establish the current condition of the treaty -protected fish resources and compare
this condition to the anticipated impacts resulting from its proposed groundwater pumping. For
purposes of the treaty -protected fish resources, the current condition must provide a reliable
description of the fish resource conditions necessary for a harvestable population of each treaty -
protected fish species at the time of submittal of the application. Applicant did not do so.
It is not appropriate to use a particular hydrologic year, here 2016 (April 1 through
November 1 only), that does not account for the actual, current resource conditions at the time the
land use application was submitted. The 2016 hydrologic year does not reflect the resource
conditions at the time of application in 2022, because it does not, among other things, account for
the streamflow changes resulting from the DB HCP, which was approved in 2020. Rec. 004298.
The failure to account for the DB HCP streamflow changes, particularly in the Crooked River,
results in an artificial and inaccurate representation of the current treaty -protected fish resource
conditions at the time of application. In addition, using a single hydrologic year does not account
for climate variability, including different water year types (especially drought years) that has a
direct impact on fish habitat. Because the record does not contain any evidence of the current
condition of the treaty -protected fish resources necessary to sustain a harvestable population of
each treaty -protected fish species at the time of the application in 2022, Applicant has failed to
carry its burden of proof, and its application should be denied.
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3. The record contains no substantial evidence evaluating the effects of
the groundwater pumping on treaty -protected fish resources.
The Board must abide by the 1855 Treaty and refrain from taking action that degrades fish
habitat that reduces treaty -protected fish productions. United States v. Washington, 853 173d at
960-61. If the 2022 FWMP diminishes the number of fish that would otherwise be available for
Tribal harvest, the Board cannot approve the 2022 FWMP, because it would violate the
1855 Treaty. See id. (state must refrain from action that diminishes the number of fish that would
otherwise be available for tribal harvest). Applicant must, therefore, establish that the 2022 FWMP
does not degrade fish habitat so that treaty -protected fish production is reduced, which begins with
an evaluation of the effects of groundwater pumping on treaty -protected fish resources.
Applicant relies on expert consultants, Resource Specialists, Inc. ("RSI") and Pradeep
Mugunthan, Ph.D., of Four Peaks Environmental Science & Data Solutions, to predict the effects
of its proposed groundwater pumping on surface water flows and stream temperature, two factors
critical to assessing fish habitat. See Rec. 000525-000533; 000571-000577; 000768-000771;
001028-001034;003366-003370;007232-007239;012404-012420;012498-012507;012696-
012716; 012731-012785. RSI used certain mathematical and computational tools—i.e., models —
to make its predictions. Id. Dr. Caldwell, Applicant's fisheries expert referenced above, relied on
RSI and Dr. Mugunthan's work in reaching his own conclusions. He used those predictions to
assess fish habitat impacts from the proposed groundwater pumping. See, e.g., Rec. 012717.
Dr Caldwell did not consider the impact of the proposed groundwater pumping on the affected
treaty -protected fish resources on a species -by -species bases; rather, he iISSUmed that RSI and
Dr. Mugunthan chose the correct models to predict the impacts of the proposed groundwater
pumping and that RSI correctly implemented the models. Rec. 012722; 012300. Dr. Caldwell's
assumptions are misplaced for at least the following reasons.8
a. Dr. Mugunthan wrongly assumed, without evidence of historic
pumping, that the transferred groundwater rights have been
used to the full extent of the right.
In his evaluation of the impacts of the proposed groundwater pumping, Dr. Mugunthan
established a baseline condition for the transferred groundwater rights identified in the 2022
FWMP. Rec.012697. He set up a baseline condition simulation by assuming that each
groundwater right was being pumped to the full extent of the right before the transfer. Id. The
record, however, is devoid of any evidence of historical pumping associated with those rights.
Absent evidence showing that the water rights were pumped to their full extent before any transfer
to Thornburgh, Dr. Mugunthan must assume that the proposed groundwater pumping is a "new
8 The Tribe again objects to the Board's decision to deny the Tribe an opportunity to present
evidence consistent with its indigenous knowledge and expertise. If it were able to present
evidence regarding its treaty -protected interests, the Tribe would be able to identify the key factors
appropriate for measuring impacts to its fisheries.
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demand" on the groundwater resource. The failure to do so risks a material underestimation of the
2022 FWMP's impact on the Tribe's treaty -protected fish resources.
b. RSI failed to justify its model selection.
RSI used the QUAL2Kw model to analyze the flow and water temperature changes
resulting from the proposed pumping associated with the 2022 FWMP. RSI does not provide any
explanation as to why it selected the QUAL2Kw model, particularly with respect to assessing
impacts to the Crooked River. Rec. 001028-001034. The QUAL2Kw model cells are 508 meters
in length, which is more than five and a half football fields. Rec. 001028. And, RSI relies on
LiDAR data to establish the bathymetry for the Crooked River. LiDAR data can be inaccurate
when used to establish bathymetry in rivers. Neither RSI nor Dr. Caldwell, however, explain how
such a "coarse" model or use of LiDAR data are suitable for the evaluation of the 2022 FWMP's
anticipated impact on fish habitat in the Crooked River, particularly treaty -protected fish habitat.
C. RSI did not consider climate variability.
RSI calibrated the model using only a portion of the 2016 calendar year (April 1 to
November 1). Rec. 001028. The decision to calibrate the model to a single year, without addressing
how that year aligns with broader thermal or hydrologic variability, raises concerns about its ability
to simulate river conditions under the range of hydrologic conditions that the Tribe's treaty -
protected fish resources face. RSI's narrow calibration window excludes critical periods such as
drought years; low -flow extremes, and elevatP.d yvatar tr.mnerntLlre r.,nnd:t',nne Q;-1 +_ +I. -c""L.
-F v.... .�. IJ tlllllar lV Ulll+ 11311
resources managed by ODFW, to adequately model the effects of the proposed groundwater
pumping on the Tribe's treaty -protected fish resources, RSI must consider climate variability. See,
e.g., Rec. 012652-012655; 012855-012859; 011954-011961; 001887-001890; 001823-001832.
4. The record contains no substantial evidence showing that the proposed
mitigation measures will completely mitigate the impact on each treaty -
protected fish resources caused by the proposed groundwater
pumping.
As noted in Section III.D.1 above, Dr. Caldwell should have updated his analysis to
include, at a minimum, sockeye salmon, fall Chinook salmon and Pacific lamprey. Dr. Caldwell's
updated analysis should have included specificity and context related to the life stage, and age
class habitat needs of each treaty -protected fish species as they differ spatially and temporarily
within the study area. Simply put, the record does not contain evidence that the proposed mitigation
measures will completely mitigate the impact on each treaty -protected fish resources caused by
the proposed groundwater pumping. Applicant, therefore, cannot meet its burden of proof to show
by substantial evidence that 2022 FWMP will not violate the 1855 Treaty, and the application must
be denied.
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IV. CONCLUSION
The "no net loss" standard in DCC 18.113.070(D) must be construed in a manner that does
not violate the fishing clause of the 1855 Treaty, which requires the protection of habitat necessary
to sustain a harvestable population of each treaty -protected fish species. For the forgoing reasons,
the Board should deny the Applicant's land use application to amend the Final Master Plan for
Thornburgh Destination Resort by modifying the Fish and Wildlife Mitigation Plan, because the
Applicant has failed to show that the proposed 2022 FWMP does not violate the fishing clause of
the 1855 Treaty.
Sincerely,
Josh Newton
of BEST & KRIEGER LLP
JN/EHG
Enclosure - USB drive containing copy of record
cc: Tribal Council
Robert A. Brunoe, Secretary-Treasurer/CEO
Austin Smith, Jr., General Manager, Branch of Natural Resources
12805.73601\43690201.6 Best & Krieger LLP
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EAGUE OF WOMEN VOTERS'
'VtSoEmpowering Voters. Defending Democracy.
May 7, 2025
Deschutes County Board of County Commissioners
1300 NW Wall St.
Bend, Oregon, 97703
Re: Thornburgh Destination Resort: 247-25-000229-A
Chair De Bone, and Commissioners Chang and Adair.
The League of Women Voters believes that all planning for ground and
surface water should include consideration for both the quality of the water and
the availability of water to meet the beneficial uses.
Decades -long declining precipitation is our sole source of water for drinking
and all other uses. Our economic ambitions and water use depend on our ability
to live within our budget and use our water appropriately.
We continue to oppose the Thornburgh Destination Resort. Using valuable,
drinkable, cold groundwater to irrigate grass and fill an unnatural lake in an arid
region is a misuse of our diminishing groundwater and a costly mistake.
The resort's reliance on the Deschutes Mitigation Program exposes the
limitations and abuses of the program. Mitigation credits, particularly within the
"general zone of impact", do not protect the aquifer from being drained or
consider that the resort is in a region of low recharge. The market price of the
water right put it beyond the resources of our public water suppliers.
Thornburgh's planned pumping requirements will lower well water levels
for surrounding well owners who are already facing costly well upgrades and
diminishing supplies.
Thornburgh's pumping will reduce groundwater discharge to the Deschutes
River from Odin Falls to the mouth of Whychus Creek, and on Whychus Creek
from Alder Springs to its confluence With the Deschutes.
ExHior PAGE
Groundwater discharge is critical to maintaining cool river temperatures
essential for native fish. Above the resort the Deschutes river temperature is
approximately 25 d Centigrade, downstream from Cline Buttes, wherever springs
discharge into the Deschutes, the temperatures fall to 11 to 14 d. Centigrade.
Millions of dollars of public and private money have been spent and will be
spent on conservation measures to improve Deschutes River flow and
temperature and restore habitat for fish and other wildlife. ESA threatened Bull
Trout, Oregon -listed native Redband Trout, and Steelhead and Salmon are
dependent on the Metolius, Whychus and Crooked river groundwater rich habitat
for spawning and rearing. There is potential to restore the Deschutes River to its
historic reputation as a world class fishery but groundwater must be protected.
PGE and the Tribes spend hundreds of millions in an attempt to provide fish
passage through the Pelton series of dams for migratory salmon and native trout
that spawn and lived in the Upper Deschutes.
The Confederated Tribes of Warm Springs Reservation have a senior water
right with an 1855 priority. Water and Fish are central to their spiritual, cultural
an -a' economic fife. The Treaty with the States acknowledged their rights, and
these should be respected.
Thank you for this opportunity to comment.
League of omen Voters of Deschutes County
PO Box 1783, Bend, Oregon 97709
219-916-4344
infor)lwydeschutes.or
Becky Powell/ water committee/541-389-5693; mIp5Q4ebendbroadband.com.
My name is Joe Craig, and I live at 2807 NW Shields Drive, Bend, OR 97703.
I thank you for this opportunity to testify today at this remand hearing.
Why do I feel the need to testify?
I am concerned about additional pressure placed on the existing water supply and maintaining high quality
water for all the people, fish and wildlife, and agriculture in central Oregon.
The Land Use Board of Appeals has remanded the Proposed Thornburgh Resort Final Master Plan back to the
county and their reasoning is based on water rights, specifically 3 issues. I am addressing issues numbers 1
and number 3.
1) Explain why the submittal of the 2022 Fish and Wildlife Management plan to the Oregon Water
Resources Department is sufficient to "no net loss" standard with respect to groundwater sources
for fish habitat mitigation.
"The resort project has been contested for decades, often over plans to supply groundwater for 950
single-family homes, golf courses, private lakes and a luxury hotel in an area where many home wells
have gone dry, and state regulators have warned the aquifer is in trouble. The developer wants to build
wells to tap groundwater flowing deep under the semi -arid, sagebrush surface of the resort site. That
water source also eventually feeds the Deschutes River and its tributaries." Ems Cureton Cook (OPB)
April 17, 2025. When the water source effects the Deschutes River, it effects fish and wildlife and that is
a strong no to the question of "no net Loss".
3) Whether the 2022 Fish and Wildlife Management Plan violates the -Treaty with the Tribes or nniaa e
Oregon, dated June 25, 1855.
Commissioners Adair and DeBone have voted not to accept any more input regarding treaty rights. In a
press release the Warm Springs leaders stating this is just latest incident in the county's "pattern of
dismissing Warm Springs Treaty -reserved rights," and that the "decision demonstrates a fundamental
lack of understanding of the Tribes' constitutionally recognized role as a sovereign co -manager of the
Deschutes Basin's resources."
We should all remember that the tribes have fished these waters since time immemorial. I don't
understand how the county can understand the full picture of this project's impact without allowing
testimony from the tribes.
Thank you,
Joe Craig
Joe Craig
2807 NW Shields Drive
Bend, OR 97703
crai sk(r ��ail.corn
OUR WATER
The COMMON GOOD and DO NO HARM. Decisions in a decent society are based on these concepts.
Privatization of water, our precious natural resource, denies the rights of people and nature to exist.
Privatization of water fails to protect the COMMON GOOD and causes irreparable HARM to people
and nature.
The COMMON GOOD encompasses the needs of farmers (not agribusiness), indigenous people who
need water for fishing and cultural preservation, fire fighters, domestic consumers and the survival of
nature to name just a few.
The HARMS of privatization of water are unsustainable and irreversible. Privatization transfers the
control of our water resources to corporations, developers, bankers, bureaucrats and corrupt
politicians to satisfy their personal and collective greed. Privatization ensures that these
unaccountable entities will control the distribution and cost of water. They will decide who will win,
who will lose, who will thrive, who will die, including nature.
Quo Warranto... By Whose Authority? Who is empowered to make the decisions about OUR water?
How do WE THE PEOPLE assert our power and rights? How do we protect our water resources?
Stop the sham of public input hearings where the decisions have already been made. Whoever makes
a proposal about water issues must represent himself in public forum. Disallow high powered
attorneys pontificating in legalize while the perpetrator basks in anonymity and unaccountability.
Implement eminent domain to purchase the water rights of owners for the COMMON GOOD. The
reality of drought, population explosion, fires and climate crisis demands a focus on what is good for
people and the planet. Personal and collective greed and control is totally unacceptable in a decent
society.
The COMMON GOOD ...... DO NO HARM STOP PRIVATIZATION of OUR WATER!
Sue Bastian
runsuebike@gmail.com
20362 Rock Canyon Bend, OR 97703
Great Old Broads
'-Wilderness
Deschutes County Board of County Commissioners
Commissioners Chang, DeBone and Adair
May 7, 2025
Re: Thornburg Fish and Wildlife Mitigation Plan
Dear Commissioners,
On behalf of the Central Oregon chapter of the Great Old Broads for Wilderness, I am
submitting the following comments regarding the Thornburg Fish and Wildlife Mitigation
Plan. Over all our position is:
• That you deny the proposed Fire and Wildlife Mitigation Plan
• We already know that there is not enough water in the Deschutes Basin to
support a destination resort
• and the county should protect the Tribal's ancient fishing rights.
That being said, we know in March that the Deschutes County Circuit Court upheld the
Oregon Water Resource Departments (OWRD) decision to deny a limited water use
license for Thornburg. They determined that due to long-term decline in ground water
levels that they had to deny the license. That in itself tells us that there is concern for
what limited water is available to protect not only groundwater but water that goes into
and out of our tributaries. These are all impacted by drought and climate change which
is only getting worse. For Thornburg to believe that their impacts would be net -zero
simply isn't true nor makes sense. While Thornburg had approval for water rights in
2013 and that expired, a lot has changed in the past 12 years regarding water and
climate and protections of our fish and wildlife.
The reason this plan was remanded back to the County is because the county did not
consider Tribal's input on this issue, specifically their Treaty Rights. The Board voted
not to accept any further input on the Tribes Treaty rights, which is simply a dismissal of
the role the Tribes play in this basin. Mr. DeBone, you stated that this is more of a state
issue, not a concern of the County. I would share that you are wrong. Tribal Treaty
rights, concern Federal, State, County and City as we are on their sovereign lands and
they need to be at the table with any of these kinds of decisions which impact not only
their culture but also economic impacts to them when they are ignored. They are
constitutionally recognized as co -managers of the Deschutes Basins resources and
their insight and input needs to be acknowledged.
Again, we ask that you deny this proposed plan and also start recognizing that all the
appeals that keep coming before the Commissioner regarding Thornburg is costing not
only the litigates lots of money but also costs the county a lot in staff time and court
proceedings.
I thank you for time in reviewing this issue.
Sincerely,
{ " �\ Az ) ayW 6'�
Mary Fchmann
Leader — Central/Eastern Oregon Bitterbrush Broadband
Bend, Oregon
6 / 563 C"u'tU -'- P1,
May 7, 2025
Deschutes County Commissioners,
The Confederated Tribes of Warm Springs, a co -manager of fish resources and a major regional
partner of our water and other resources, must be provided adequate time and consideration
to participate in this regional project.
This request includes, supporting their request for 30-minute testimony, including time at the
beginning and end of the hearing today, May 7 and the Continuation requested for the week of
June 25th. This input is given as the Tribe to date, have not been properly consulted for today's
hearing as well as previously in the process of this project which resulted in their having to
intervene through the Court of Appeals. I believe that most involved would like to avoid
additional law suits in the future.
Over the years The Confederated Tribes have proven to be competent and important partners in
developing and managing our regional water resources in our region and throughout the State
and we would like to see our county and state support their participation to help our region to
develop plans that protect and balance the use of resources for short term benefit in our region
today and into the future.
Some of the projects the tribes have contributed and been a party to include
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Oregon nc,vu�a.c vvacc. .—I—
• 1992 Tumelo Creek water preservation and enhancement
« 1988 Metolius Wild and Scenic Plan
• Partnering with multiple state and federal natural resource entities throughout the
region and state
Finally, I believe, as this project has illuminated, the need for the Deschutes County
Commission, other agencies, businesses, and citizens throughout the central Oregon to learn
more about the Middle Oregon Treaty of 1855 and the reserved rights of the Confederated
Tribes of Warm Springs Oregon.
Submitted by Jolene Estimo
A citizen of the United States, State of Oregon, and the Confederated Tribes of Warm Springs
Oregon (who ceded 10 million acres of land to the United States, including most of Deschutes
county)
�vI ES CO
Qj G2�
MEETING DATE: May 7, 2025
SUBJECT: Public Hearing on the Community Development Department Draft FY 2025-26
Work Plan
RECOMMENDED MOTION:
Information only.
BACKGROUND AND POLICY IMPLICATIONS:
The purpose of this public hearing is toaccept
Plan
public comments for the Community
Development Department's FY 2025 26 Work
None
ATTENDANCE:
Peter Gutowsky, CDD Director
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Peter Gutowsky, AICP, Director
CDD Management Team
DATE: May 7, 2025
SUBJECT: Community Development Department Draft Fiscal Year (FY) 2025-65 Work Plan and 2024
Annual Report / Public Hearing
I. SUMMARY
The purpose of this public hearing is to accept public comments for the Community Development
Department's (CDD) FY 2025-26 Work Plan (Attachment).
II. BACKGROUND
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Each spring, CDD prepares an annual work Mali describing Nrvpo$cu Nrojc�.�a Zvi uic wii�iiis ila�ai year. r
review of the draft work plan provides the Planning Commission, Historic Landmarks Commission, County
Administration, customers, partner agencies, and the Board of County Commissioners (Board) an opportunity
to provide input, including additions, modifications and possible re -prioritization. The work plan describes the
most important projects in each division based on:
1. Board annual goals and policies; 3. Changes in state law;
2. Carry-over projects from current or prior 4. Grants/funding sources; and
years; 5. Public comments.
It also provides context for prioritizing and initiating new projects that arise during the year. The work plan
includes the following highlights:
• Continue improving CDD's customer -centric website
• Upgrade the Onsite Wastewater Division's Operation & Maintenance software system to enhance
tracking capabilities and streamline processes
• Explore options and approaches to address rural housing and homelessness as allowed under state
law
• Coordinate with the Road Department to enhance the driveway access permit processes
• Conduct pre -application meetings and respond to customer inquiries (counter, phones, and emails)
• Initiate an update to the Newberry Country Plan
• Coordinate growth management issues, including technical analyses related to housing and
employment needs
• Participate in legislative nr rulemaking processes to shape state laws that benefit Deschutes County
• Continue to participate in a County -led effort to create a Pre -disaster Preparedness Plan
III. PLANNING COMMISSION RECOMMENDATION
The Planning Commission conducted a public hearing on the Planning Division Work Plan on March 27 and
received two comments, one requesting a Deschutes River Woods Community Plan, the other emphasizing
more code enforcement resources. Deliberations occurred on April 10. Staff utilized three tables, described
below, to facilitate a recommendation. Considering the priority projects listed in Table 1, the Planning
Commission ranked in order of importance, dark skies #1, natural hazard planning #2, and Newberry Country
Plan Update #3.1 They endorsed all the projects listed in Tables 2 and 3, considering them noteworthy for the
community. To the extent that resources become available, they also support convening panel discussions,
prioritizing water resources and regional housing discussions, ahead of other suggestions such as destination
resorts, a high desert zone concept, and wildlife.
IV. PRIORITY PROJECTS
Table 1 captures priority discretionary and nondiscretionary projects that are supported by the Board and
Planning Commission, grant funded, or in process. These projects in their totality are "significant," requiring
staffing resources that span 6 to 12 months or longer.
Table 1— Priority Discretionary and Non -discretionary Projects
Priority Projects
Z
4.
Newberry Country Plan Update
1.
Current Piannin
2.
Comprehensive Plan 2040 Reconsideration
5.
Natural Resource and Hazard Planning
3.
Clear and Objective Standards for Housing
6.
Dark Skies
Table 2 identifies ongoing Planning Division operational responsibilities, regional coordination duties, and
code maintenance tasks. These projects in their totality range from "minor" to "moderate," requiring staffing
resources that span 4 to 8 months to complete.
Table 2 — Operational Responsibilities, Coordination Duties, and Code Maintenance
Category Projects
1. Destination resort and overnight lodging reporting.
2. Marijuana inspections.
3. Population estimates and forecasting.
Operational 4. Staffing HLC, Bicycle and Pedestrian Advisory Committee, and Deschutes River
Responsibilities Mitigation and Enhancement Committee.
5. 2026 Legislative Short Session.
6. Interdepartmental coordination (new landfill siting, etc.).
1 The Planning Commission recognized that Current Planning, the Comp Plan Update, and Clear and Objective Standards are
mandatory and currently consume significant staff resources.
2 Current Planning responsibilities are non -discretionary. Local land use decisions are subject to specific deadlines per state law.
ORS 215.427.
-2-
Category Projects
7. City of Bend Coordination i
• Coordinate growth management issues, including technical analyses related to
housing and employment needs, and SB 1537, an expedited UGB amendment for
affordable and work force housing.
• Coordinate with the Bend Park and Recreation District for the development of park
space in SE Bend.
8. City of La Rine Coordination
• Participate in La Pine 2045 Comprehensive Plan Update process.
• Participate with Deschutes County Property Management and the City of La Pine to
update Newberry Neighborhood comprehensive plan designations, master plan,
and implementing regulations.
• Coordinate transportation impacts and long-range planning for County -owned
right-of-way facilities located within city limits.
9. City of Redmond Coordination
• Coordinate growth management issues, including technical analyses related to
housing, employment needs, and planning efforts for the McVey Interchange on
South Highway 97.
• Update the Joint Management Agreement and Urban Holding zone per HB 3197.
10. City of Sisters Coordination
•.: Participate in the implementation of Sisters Country Vision Plan, City of Sisters
Comprehensive Plan Update, and UGB Expansion process.
Coordination Duties • Coordinate on urbanization related code amendment projects.
11. _Transportation Planning
• Process road naming requests associated with certain types of development on a
semi-annual basis.
• Administer the County's Transportation System Development Credit program.
• Coordinate with Bend Metropolitan Planning Organization on regional projects and
planning.
• Coordinate with the Oregon Department of Transportation on roadway projects
and interchange area management plans.
• Coordinate internal review of Deschutes County Code (DCC) Title 17 code
amendments related to land divisions, road improvements, and transportation
impacts to ensure compliance with HB 3197.
• Provide updated traffic data for the ongoing Newberry Country Plan update.
12. Housing Strategies.
• Amend DCC to define family for unrelated persons HB 2538, non -familial
Individuals.
• Explore options and approaches to address rural housing and homelessness as
allowed under state law.
13. Department of Land Conservation and Development Rulemaking
• Monitor rulemaking as it pertains to Goal 5 - Cultural Areas, Farm and Forest
Conservation Program Improvements, and Eastern Oregon Solar Siting.
14. Initiate legislative amendments to the Comprehensive Plan and Zoning Code as needed.
15. Housekeeping Amendments
Code Maintenance • Initiate Comprehensive Plan and/or Zoning Text amendments to comply with and
implement new or revised state laws.
-3-
Table 3 lists discretionary zoning text amendments. These are "lower" priority projects, requiring staffing
resources that span 4 to 12 months or longer to complete. All of the text amendments carryover from 2024.
Table 3 — Low Priority Zoning Text Amendments
Category
Projects
1. Allow "self -serve" farm stands in Rural residential Exception Areas Comply with House
Bill 3109 (2021) pertaining to establishment of childcare facilities in industrial zones.
2. Childcare facilities in Industrial Zones
3. Define family for unrelated persons per HB 2538 (Non -familial Individuals).
4. Forest Zone Code —Review for compliance with Oregon Administrative Rule.
5. Lot Line Adjustments and Re -platting.
6. Medical Hardship Dwellings —review for consistency with state law.
Zoning Text
7• Minor variance 10% lot area rule for farm and forest zoned properties.
Amendments
8. Outdoor Mass Gatherings update.
9. Section 6409(a) of the Spectrum Act (Wireless Telecommunication Amendments).
10. Sign code to become consistent with federal law.
11. Title 19, 20, 21—Language related to Class I, ll, and III road projects as allowed uses.
12. Title 22—Procedures Ordinance for consistency with state law and planning department
interpretations.
13. Wetland Regulation Clarification for Irrigation or Artificially Created Wetlands.
V. BOARD DELIBERATION & ADOPTION OF CDD FY 2025-2026 WORK PLAN
The Board will ultimately prioritize projects based on their annual goals and objectives as planning resources
_:I_I_l_ roll �.. .: .-,-aL. .. .... .l.. l:.. L. ......:... .. -he loard van decide to:
become avallabi r !owing he public hearing, LI1C l7Valu may uc� luc w.
1. Close the oral record, keep the written record open for approximately one week to May 14 and deliberate
in June.
2. Close the oral and written records and deliberate at this meeting or at a subsequent meeting.
3. Continue the public hearing to a date certain.
Attachment:
Draft FY CDD 2025-26 Work Plan & 2024 Annual Report
-4-
O-T
�vX E s
COMMUNITY
-•�, DEVELOPMENT
FY 2025-26 Work Plan &
2024 Annual Report
117 NW Lafayette Avenue
P.O. Box 6005
Bend, OR 97703
www.deschutes.org/cd
(541) 388-6575
Building Safety
Code Enforcement
Coordinated Services
Onsite Wastewater
Planning
Introduction....................................................................................................................... 4
MissionStatement............................................................................................ 4
Purpose............................................................................................................. 4
Adoption........................................................................................................... 4
Elected& Appointed Officials .......................................................................................... 5
Board of County Commissioners FY 2025-2026 Goals & Objectives ....................... 6
PopulationGrowth............................................................................................................ 8
Budget& Organization....................................................................................................... 9
FiscalIssues...................................................................................................... 9
OperationalChallenges................................................................................... 9
BudgetSummary .......................................................................................... 10
StaffSummary .............................................................................................. 10
OrganizationalChart......................................................................................10
Performance Management........................................................................................... 11
2024 Performance Management Results .................................................... 11
2024 Year in Review.......................................................................................13
2025-2026 Performance Measures By Division .......................................... 13
BuildingSafety.............................................................................................. 13
CodeEnforcement........................................................................................ 13
CoordinatedServices......................................................................................13
OnsiteWastewater........................................................................................ 13
Planning...........................................................................................................14
AdministrativeServices...................................................................................................15
Overview......................................................................................................... 15
2024 Year in Review...................................................................................... 15
2025-26 Work Plan Projects .................................................... I.................... 15
BuildingSafety.................................................................................................................. 16
Overview......................................................................................................... 16
2024 Year In Review...................................................................................... 16
2025-26 Work Plan Projects......................................................................... 18
CodeEnforcement...........................................................................................................19
Overview......................................................................................................... 19
2024 Year in Review....................................................................................... 19
2025-26 Work Plan Projects........................................................................ 20
CoordinatedServices...................................................................................................... 22
Overview......................................................................................................... 22
2024 Year in Review...................................................................................... 22
2025-26 Work Plan Projects........................................................................ 22
OnsiteWastewater.......................................................................................................... 23
Overview......................................................................................................... 23
2024 Year in Review...................................................................................... 23
2025-26 Work Plan Projects........................................................................ 25
Planning............................................................................................................................. 26
Overview......................................................................................................... 26
CurrentPlanning........................................................................................... 26
LongRange Planning.................................................................................... 26
TransportationPlanning................................................................................26
Floodplain & Wetlands Planning................................................................. 26
2024 Year in Review...................................................................................... 27
2025-26 Work Plan Projects........................................................................ 32
Community Involvement Report.................................................................................. 36
Community Development Mission Statement
The Community Development Department (CDD) facilitates orderly growth and development in Deschutes
County through coordinated programs of Building Safety, Code Enforcement, Coordinated Services, Onsite
Wastewater, Planning, and education and service to the public.
Purpose
The Fiscal Year (FY) 2025-26 Work Plan and 2024 Annual Report highlight the department's goals, objectives,
and accomplishments and are developed to:
• Report on achievements and performance.
• Implement the Board of County Commissioners (BOCC) goals and objectives.
• Implement the Deschutes County Customer Service "Every Time" Standards.
• Effectively and efficiently manage organizational assets, capabilities and finances.
• Fulfill the department's regulatory compliance requirements.
• Address changes in state law,
• Enhance the county as a safe, sustainable and highly desirable place to live, work, learn, recreate, visit
and more.
Adoption
The BOCC adopted this report on June XX, 2025, after considering public, stakeholder and partner
organization input and Planning Commission and Historic Landmarks Commission recommendations. The
Work Plan often includes more projects than there are resources available. CDD coordinates with the BOCC
throughout the year to prioritize and initiate projects. Those not initiated are often carried over to future
years.
4 CDD FY 2025-26 Work Plan / 2024 Annual Report
BOARD OF COUNTY COMMISSIONERS
Anthony DeBone, Chair, January 2027
Patti Adair, Vice Chair, January 2027
Phil Chang, Commissioner, January 2029
COUNTY ADMINISTRATION
Nick Lelack, County Administrator
Whitney Hale, Deputy County Administrator
Erik Kropp, Deputy County Administrator
PLANNING COMMISSION
Matt Cyrus - Chair, Sisters Area, 6/30/26
Susan Altman - Vice Chair, Bend Area, 6/30/28
Nathan `Hovekamp - Bend Area, 6/30/27
Kelsey Kelley — Tumalo Area, 6/30/27
Jessica Kieras — Redmond Area, 6/30/26
Mark Stockamp - At Large, 6/30/27
Toni Williams — South County, 6/30/29
HISTORIC LANDMARKS COMMISSION
Rachel Stemach — Chair, Bend Area, 3/31/28
Dennis Schmidling _- Vice Chair, City, of Sisters, 3/31/28
Eli Ashley- At Large, 3/31 /26
Lore Christopher —At Large, 3/31 /26
Christine Hortingjones — Ex-Officio, 3/31/28
Marc Hudson —At Large, 3/31/28
Lilian Syphers -- Ex-Officio, 3/31/28
HEARINGS OFFICERS
Tommy Brooks
Gregory 1. Frank
Alan Rappleyea
Laura Westmeyer
AND PEDESTRIAN ADVISORY COMMITTEE
Jennifer Letz - Chair, Sisters, 6/30/26
avid Green - Vide Chair, At Large, 6/30/26
Wendy Holzman At Large, 6/30/26
Mason Lacy — At Large, 6/30/26
David Roth -- Bend, 6/30/26
Rachel Zakern -�--- At Large 6/30/26
AnthonyAccinelli - La Pine, 6/30/27
Neil Baunsgard — Bend, 6/30/27
Diane Flowers, At Large, 6/30/27
Matt Muchna ---At Large, 6/30/27
Bob Nash —Redmond, 6/30/2027
Mark Smith —At Large, 6/30/27
5 CDD FY 2025-26 Work Plan / 2024 Annual Report
Board of County Commissioners
FY 2025-26 Goals & Objectives
Mission Statement: Enhancing the lives of citizens by delivering quality services in a cost-
effective manner.
Safe Communities (SC): Protect the community through planning, preparedness, and delivery of coordinated
services.
• Provide safe and secure communities through coordinated public safety and crisis management
services.
• Reduce crime and recidivism and support victim restoration and well-being through equitable
engagement, prevention, reparation of harm, intervention, supervision and enforcement.
• Collaborate with partners to prepare for and respond to emergencies, natural hazards and disasters.
Healthy People (HP): Enhance and protect the health and well-being of communities and their residents.
• Support and advance the health and safety of all Deschutes Countys residents.
• Promote well-being through behavioral health and community support programs.
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• CI Isu e children, CI I, youth and ICI III IIC-) I IQVC Cq UI Ia UIC al.l.es> LU I I lei Ilal I ICQILI I >eI vices, I IUUJ 111g, 1 IUII ILIU1 I,
child care, and education/prevention services.
• Help to sustain natural resources and air and water quality in balance with other community needs.
• Apply lessons learned from pandemic response, community recovery, and other emergency response
events to ensure we are prepared for future events.
A Resilient County (RC): Promote policies and actions that sustain and stimulate economic resilience and a strong
regional workforce.
• Update County land use plans and policies to promote livability, economic opportunity, disaster
preparedness, and a healthy environment.
• Maintain a safe, efficient and economically sustainable transportation system.
• Manage County assets and enhance partnerships that grow and sustain businesses, tourism, and
recreation.
Housing Stability and Supply (HS): Support actions to increase housing production and achieve stability.
• Expand opportunities for residential development on appropriate County -owned properties.
• Support actions to increase housing supply.
• Collaborate with partner organizations to provide an adequate supply of short-term and permanent
housing and services to address housing insecurity.
6 CDD FY 2025-26 Work Plan / 2024 Annual Report
Board of County Commissioners
FY 2025-26 Goals & Objectives
Service Delivery (SD): Provide solution -oriented service that is cost-effective and efficient.
• Ensure quality service delivery through the use of innovative technology and systems.
• Support and promote Deschutes County Customer Service "Every Time" standards.
• Continue to enhance community participation and proactively welcome residents to engage with County
programs, services and policy deliberations.
• Preserve, expand and enhance capital assets, to ensure sufficient space for operational needs.
• Maintain strong fiscal practices to support short and long-term County needs.
• Prioritize recruitment and retention initiatives to support, sustain, and enhance County operations.
7 CDD FY 2025-26 Work Plan / 2024 Annual Report
This graph provides a snapshot of the County's growth since 1960 and the 5- 0--year Portland State
University (PSU) Population Forecast for Deschutes County from 2022 through 2072.
PORTLAND STATE UNIVERSITY 2022-2072 DESCHUTES COUNTY FORECAST
0. A
� @a
Deschutes County
207,921
216,822
291,344
1.3%
382,813
Bend
103,296
109,525
155,066
1.6%
218,270
Redmond
37,342
39,533
57,516
1.7%
79,152
Sisters
3,437
3,799
8,049
3.1 %
15,190
La Pine
2,736
2,950
5,544
2.3%
9,061
Unincorporated
60,430
61,014
65,164
0.3%
61,140
*AAGR: Average Annual
Growth Rate
8 CDD FY 2025-26 Work Plan / 2024 Annual Report
Fiscal Issues
• CDD experienced a modest improvement in permitting volumes in 2024, mainly due to legislation
allowing accessory dwelling units (ADUs) in rural residential areas. While single-family dwelling (SFD)
permits and site evaluations increased, land use applications declined. ADU application types
accounted for 4% of SFD permits, 21.2% of site evaluations, and 5% of land use applications. This
initial surge in application submissions is not anticipated to continue.
• Personnel cost increases are anticipated due to several key factors. These include adjustments to
salaries resulting from a Pay Equity & Market Evaluation Project, which is intended to increase
competitiveness in the job market, rising benefit costs, and investments in staff training to ensure
exceptional service delivery. It is essential to plan for these increases to maintain our commitment to
attracting and retaining top talent, which is critical to long-term success and organizational stability.
• CDD responds to development inquiries, implements legislative and BOCC priorities, and supports
County initiatives. Many of these require research and detailed responses without generating
permits or revenue. This "non -fee generating" work, while a public good, consumes resources
needed for processing applications and permits.
• Issues may also arise from adapting to changes in the economy and complying with evolving
legislation.
Operational Challenges
• Maintaining productivity amid staff resignations while completing training for new staff. In 2024, CDD
welcomed 6 new staff members, saw 5 resignations, and added 2 new positions, resulting in a total
of 52 FTE. Approximately 45% of staff have 5 years or less experience with the department.
• Coordinating with the Human Resources Department to evaluate, propose and implement strategies
to attract and retain staff in a highly competitive market.
• Continue succession planning for anticipated staff retirements, with 15% of staff eligible for
retirement within the next 3 to 8 years based on length of service.
• Implementing new laws from the 2023, 2024, and possibly the 2025 Legislative Session.
• Processing complex cases, applications, and evaluations require thorough analysis and interpretation
of local and state regulations.
• Addressing affordable housing by collaborating with cities, the Countys Property Manager, and other
partners.
• Improving the department's website and other electronic services to enhance efficiencies and service
delivery.
9 CDD FY 2025-26 Work Plan / 2024 Annual Report
Budget Summary
Resources 1 $11,302,683 1 $13,932,023 1 $12,475,587 1 $11,329,936 1 $11,760,201
Requirements 1 $11,302,683 1 $13,392,023 1 $12,475,587 I $11,329,936 I $11,760,201
Staff Summary
Organizational Chart
10 CDD FY 2025-26 Work Plan / 2024 Annual Report
CDD is committed to a comprehensive approach to managing performance. The department achieves its
goals and objectives by strategically establishing and monitoring performance measures and then
adjusting operations based on those results. The performance measures allow staff to:
• Address service delivery expectations from the perspectives of CDD's customers.
• Ensure the department fulfills its regulatory responsibilities.
• Efficiently and effectively manage the organization's assets, capacities and finances.
• Preserve and enhance the County as a safe, sustainable and desirable place to live, work, visit,
and recreate.
The following graphs represent a sample of CDD's performance measures for 2024. For a complete
review of performance measures, please follow this link: https://deschutes.orR/cd/.
2024 Performance Management Results
Community Development Building Safety
145 SFD Dwelling Acceptance to Ready to Issue Residential Plan Review Turnaround in Days
120 . �-r
125 132 55
96 96 45
105 92
88 82 82 35 29.4
85 14
i 4
59� 25 21.8 183 tg < 22.3
5 t� ® 17.9
65 ® 49 _. 14.2 17� .. .®..,,jj,_ 13.4 12.6
25 m. 5
® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ®
,an 2024 Mar 202-4 May 2(j24 Jul 2024 Sept 2024 Nov 2024 )an 2024 Mar 2024 May 2024 0202-4 Sept2024 Nov 2024
.a,--# of Days from Acceptance to Ready to Issue m ® Target-30 Days v ,a„
® Target Low-8 Days ^� Target High -10 Days
Performance Measure: Complete new home permit process within 30 days from application
acceptance to ready -to -issue. Performance Measure: Achieve average plan review turnarou nd time between 8 and 10 days
Annual Average of 86 Days - Target Not Achieved
Annual Average of 18.7 Days - Target Not Achieved
Building Safety
105%
Building Safety
13 Field Inspector Average Stops per Day
Inspections Completed Same Day as Requested
12 - - ® - - - « - - - - ® - - - - - - -
98.8% 98.7% 98.4% 98.0% 98.3% 99.2%
11 10.4
9.9 10,0 10 4 10.1
100%
�» i - �^^
� "`=�� ...,....� �.::_.:- -� ...-t� ..::.,.::... �1
....1-49 „�`
,.'-W ... `�...
10
..;
99.1/ ®' 98.7% 99.0%�
98.3% 98.4%
T
9.0 S.3
95%
97.6%
8.5 3`�
8.0
7.1 m o
90%
® ® ® ® ® ® ® ® ®
7
5.8 y'
6 �
85%
47
)an 2024 Mar 2024 May 2024 )u1202-4 Sept 2024 Nov 2024
aaQ^� Field Insp Ave Stops per Day - - Target Low- 8 Stops
Target High -12Stops
Performance Measure: Achieve an average of 8to 12 inspection stops per day, per
an 2024 Mar 2024 May 2024 Ju12024 Sept 2024 Nov 2024
a % Building Insp Completed On Time ® Target Low -90%
Target High - 100%
Performance Measure: Achieve 90%to 100% of inspections completed on same day as
requested.
Annual Average of 8.6 Stops Per Day - Target Achieved Annual Average of 99.1 % - Target Achieved
11 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Performance Management Results, continued
Onsite Wastewater Onsite Wastewater
New System Permit Issuance Time Pre -cover Inspections Completed On Time
28.0 105% 100%
28.3 100% 100% 100% 100% 100% 100% 100% 100% 100%
23.8
°. 100%
am_'_C' ,a_
3 o� y 0h
� '
g�..yf
23.0 18.4 95%
18.0 16.2 � 7.2
127 11.412.9 11.3 90%
®®T_813.0 85%
8.0 131 80%
6.1 9.9
75%
3.0
Jan 2024 Mar 2024 May 2024 1012.024 Sept 2024 Nov 2024 Jan 2024 Mar 2024 May 2024 ju12024 Sept 2024 Nov 2024
a- Pre -Cover Insp Completed On Time Target Low -90%
New Sys Permit Issue Time - Target - 12 Days - Target High - 100%
Performance Measure: Achieve 90%to 100% of pre -cover inspections completed on same
Performance Measure: Issue new onsite septic permitswithin 12 days of completed app.
Annual Average of 16.1 Days - Target Not Achieved Annual Average of 96.5% Completed - Target Achieved
Current Planning 65.0 Current Planning
60.5
Land Use Decisions With Prior Notice 56.4
89 7 Land Use Decisions Without Prior Notice
95.0 95.0 55.0
r/
85.0 69.2 43.8
� 60.4 j 45.0 41 5
65 0 55 1 61.2
61 1 f;
50.1 62.9 35.0
45.0 40 7 0 24 8 25 6 25 i c5."
® m 25.0 ® 18.9 7_
35.0 25 5 ®® m e e
�� _ 1$ o
emu, - ®., ate. 21.6
25.0 m 15.0 20.4
15.0
16.9
5.0 5.0
Jan 2024 Mar 2024 May 2024 Ju12024 Sept 2024 Nov 2024 Jan 2024 Mar 2024 May 2024 Ju12024 Sept 2024 Nov 2024
° Average Days To Complete ® ® Target -45 Days 15--- Average Days To Complete ® - Target -21 Days
Performance Measure: Issue all administrative decisions with notice within 45 days of Performance Measure: Issue all administrative decisions without notice within 21 days of
completed application. completed application.
Annual Average of 55.4 Days - Target Not Achieved Annual Average of 32.2 Days - Target Not Achieved
12 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review
✓ Continued to invest significant resources in comprehensive training and development plans for new
staff.
✓ Code Enforcement transitioned to a system of reporting the number of violations rather than the total
number of cases.
✓ Revised reporting to eliminate periods of time waiting for applicant responses
FY 2025-26 Performance Measures By Division
CDD's FY 2025-26 performance measures align the department's operations and work plan with BOCC
annual goals and objectives and the County's Customer Service "Every Time" Standards.
Building Safety
• Achieve an average 8-12 inspection stops per business day to provide Duality servile. (LB)O C_ Goal Oc
Objective SD-1
• Achieve an average turnaround time of 8-10 business days for building plan reviews, ensuring
compliance with or exceeding state requirements. (BOCC Goal & Objective SD-1)
• Achieve 90-100% of inspections completed the same day as requested. (BOCC Goal & Objective SD-1)
Code Enforcement
• Achieve an average adjudication time of 150 business days from date of case assignment to date of
adjudication. (BOCC Goal & Objective SC-1)
Coordinated Services
Achieve an average turnaround time of 4 business days or fewer for permit ready -to -issue status.
(BOCC Goal & Objective SD-1)
Onsite Wastewater
• Achieve a 95% compliance rate for Alternative Treatment Technology (ATT) Septic System Operation and
Maintenance (0&M) reporting requirements to protect groundwater. (BOCC Goal & Objective HP-4)
• Achieve the issuance of new onsite septic system permits within 12 business days following the
submission of a complete application. (BOCC Goal & Objective SD -I)
• Achieve 90-100% of pre -cover inspections completed the same day as requested. (BOCC Goal &
Objective SD -I)
13 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Performance Measures By Division, continued
Planning
• Issue all administrative decisions requiring notice within 45 business days and without notice within 21
business days following the submission of a complete application. (BOCC Goal & Objective Sal)
• Update Deschutes County Code (DCC) to comply with HB 3197, Clear and Objective Code Update Pro-
ject, which requires clear and objective standards for housing development in rural residential excep-
tion areas, unincorporated communities, and for accessory farm worker accommodations. (BOCC Goal
& Objectives SC-3, HP-4, and RC-1)
• Natural Resources / Natural Hazards —Develop a work plan to amend the Comprehensive Plan and
County Code requiring defensible space and fire-resistant building materials per SB 762 and SB 644 —
Wildfire Mitigation. (BOCC Goal & Objectives SC-3, HP-4, and RC-1)
e
i
i
91% ,�
14 CDD FY 202S-26 Work Plan / 2024 Annual Report
Overview
Administrative Services includes the Community Development Director, Senior Management Analyst, two
Systems Analysts and an Administrative Assistant. This division oversees a variety of functions that ensure
smooth and efficient operations, including departmental operations, facilities, personnel, budget, customer
services, compliance, technology services, administrative support, and performance measures.
2024 Year in Review
✓ Improved business process automation through the use
of Laserfiche, allowing for storage, organization and access
to information digitally.
✓ Submitted a U.S. Environmental Protection Agency
Community Change Grant application.
✓ Coordinated with the Human Resources Department to
participate in the Oregon Pay Equity and Market
Evaluation Study.
✓ Provided addressing services to the City of Redmond on
contract.
✓ Facilitated division webpage updates, including an
improved Code Enforcement complaint submittal process
with the ability to upload photos and published application
guides.
FY 2025-26 Work Plan Projects
• Continue to participate in a County -led effort to create a Pre -disaster Preparedness Plan.
• Continue to update CDD's Continuity Of Operation Plan as necessary, based on lessons learned, and
ensure staff awareness of their roles and responsibilities during an emergency.
• Coordinate with the Human Resources Department to evaluate, propose and implement strategies to
attract and retain staff to meet service demands in a highly competitive market.
• Explore opportunities to enhance CDD's practices while maximizing operational efficiency in a cost-
effective manner.
• Continue improving CDD's customer -centric website. Enhanced content will help customers
understand policies and procedures, guide them through the development process in Deschutes
County, and expand online instructions.
• Initiate a computer equipment replacement initiative over a three-year period ensuring operational
efficiency and improved technological advancement.
• Upgrade the Onsite Wastewater Division's Operation & Maintenance O&M software system to enhance
tracking capabilities and streamline processes.
15 CDD FY 2025-26 Work Plan / 2024 Annual Report
Overview
Building Safety includes a Building Official, Assistant Building Official and thirteen Building Safety Inspectors.
The division ensures structures are constructed, maintained, and used in compliance with applicable safety
standards through consistent application of state and federal building codes and public education. It offers
construction plan reviews, consultations, and inspections in the rural county and cities of Sisters and La
Pine. Additionally, it provides services to Lake, Jefferson, Klamath, and Crook counties, the cities of Bend,
Redmond, and the State of Oregon Building Codes Division, as needed.
2024 Year in Review
✓ Issued 423 new single-family dwelling permits. The distribution of these new homes for Deschutes
County's building jurisdiction included:
— Rural/unincorporated areas: 270
— City of La Pine: 90
— City of Sisters: 63
✓ Completed inspections on major projects such as:
— Zero lot line single-family dwellings in Sisters Sunset Meadows Subdivision
— Single-family dwellings in La Pine's Reserve in the Pines Subdivision
— Licensed in -home family care facilities change of use
✓ Completed major building plan reviews for:
Air Trnffir (-'nntrnl Tn\Ainr at RAnrl Airnnrt
— Sunset Meadows Apartment Complex in Sisters
— Walgreens in La Pine
— Multiple Medical Clinic Tenant Improvements in La Pine
— Sisters Parks and Recreation Facility change of use
16 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review, continued
✓ Participated in SB 1013, RV's as residential dwelling discussions.
✓ Provided A -level commercial electrical and plumbing inspections for the City of Redmond.
✓ Participated in Central Oregon's International Code Council Chapter meetings.
✓ Created a Master Permit Program Policy for the cities of Sisters and La Pine for single -contractor
subdivisions.
✓ Developed Commercial Permit Application Guides for webpage update.
✓ Participated on the Oregon Building Officials Association Board of Directors.
✓ Utilized iPad's for field inspectors to access electronically, codes and development plans.
✓ Ensured staff are fully certified residential inspectors.
New Single Family Dwelling Permits Issued
840 ____________________________ _____________________________________.________---_._______-______________-_-___-
' 775
740
i
640 ; 640
i
569 574
558 e__----560 i
540
440
340
240
140
40
2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024
17 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Work Plan Projects
• Continue succession planning in
anticipation of future retirements and
explore staffing needs, such as
obtaining additional certifications to
enhance department efficiencies.
• Update informational brochures,
handouts, and forms (e.g., accessory
structures, special inspection
agreement form, residential additional
energy measure).
Coordinate with the Human Resources
Department to evaluate, propose and
implement strategies to attract and
retain staff to meet increasing service
demands in a highly competitive
market. Explore options for monthly A -
level certification stipends.
• Promote video inspections for difficult -
to -access areas, such as underfloor
areas that are covered.
Air Traffic Control Tower under construction,
2024, Bend Municipal Airport
18 CDD FY 2025-26 Work Plan / 2024 Annual Report
Overview
Code Enforcement includes an Administrative Manager, four Code Enforcement Specialists, which includes
one as Lead. They are supported by a Deschutes County Sheriff's Office (DCSO) deputy and CDD divisions.
The division plays a critical role in maintaining public health and safety through code violation investigations
related to land use, onsite wastewater systems, building, and solid waste codes. The division also
collaborates with the cities of La Pine and Sisters for building code violations under the Building Safety
program. The primary goal is to achieve voluntary compliance, with unresolved cases taken to Circuit Court,
justice Court or an Administrative Hearing. The program continues to refine its procedures, improving cost
recovery through citations, and coordinating county abatement plans for chronic nuisances and public
health issues.
2024 Year in Review
✓ Received 651 new cases and resolved 563 during the year.
✓ Created a Code Enforcement Specialist II classification to promote career advancement and staff
retention.
✓ Analyzed the Code Enforcement program and revised procedures to improve case assignment,
management, and proceedings.
✓ Partnered with county departments to resolve difficult cases, ensuring efficient operations and avoiding
overlapping efforts.
✓ Utilized the designated DCSO deputy for site visits for enforcement and safety measures.
✓ Presented code enforcement statistics at the annual Cannabis Advisory Committee meeting to
demonstrate its partnership with the DCSO.
✓ Updated its webpage to include frequently asked questions.
✓ Updated the Code Enforcement Policy and Procedures Manual.
✓ Revised the new hire training program.
✓ Processed one Noxious Weed complaint compared to seven in 2023.
✓ Completed two property abatements to ensure public health and safety of the community.
✓ Revised online compliant submittal process to include ability to attach photos, geographic information
system (GIS) data, and communication to improve efficiency and record keeping.
✓ Eliminated onsite wastewater O&M reporting delinquencies as an enforceable code violation.
✓ Created performance measure for case adjudication.
✓ Improved workflows to track medical hardship temporary use permits and property abatements.
✓ Enhanced internal dashboard reporting.
19 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Work Plan Projects
• Improve methods of communication with
complainants regarding case status and case
closure.
• Improve public education through webpage
updates and public education opportunities.
• Update the Policy and Procedures Manual to
include the property abatement process.
• Amend DCC 15.04 Dangerous Building
Abatement, if needed.
• Coordinate with the Human Resources
Department to evaluate, propose and implement
strategies to attract and retain staff to rneet
service demands in a highly competitive market.
• Amend DCC 1.16 Abatement language to include
appeal processes.
• Issue a Request for Proposal (RFP) for property
abatement professional services.
Annual Cases Opened and Closed
20 CDD FY 2025-26 Work Plan / 2024 Annual Report
Before compliance:
A .Li _ _ 1
After compliance:
21 CDD FY 2025-26 Work Plan / 2024 Annual Report
Overview
Coordinated Services includes an Administrative Manager, Administrative Supervisor, three Permit
Technician II's, one as Lead, and four Permit Technician I's. This division provides permitting and front-line
direct services to customers. It ensures accurate information, minimal wait times, and efficient operation of
the front counter and online services while coordinating with all divisions.
2024 Year in Review
✓ Managed 30,600 permit notifications, responded to 11,000 emails and 5,800 telephone calls, and
facilitated 4,600 in -person interactions.
✓ Staff provided exceptional customer service to in -person customers as well as virtually through the
Accela online portal.
✓ Reinstated a Lead Permit Technician to facilitate staff trainings and manage complex workload demands.
✓ Participated in webpage updates.
✓ Improved processes to create efficiencies and address staffing shortages.
✓ Developed a review process for transient room tax applications, ensuring compliance with zoning and
building requirements.
FY 2025-26 Work Plan Projects
• Revise the decommissioning plan process and procedure, and create a new record type to track
completion.
• Revise internal process and procedure for legitimizing unpermitted structures.
• Develop a list of commonly required inspections by project type to assist customers with scheduling
inspections.
• Coordinate with the Road Department to enhance driveway access permit processes.
22 CDD FY 2025-26 Work Plan / 2024 Annual Report
Overview
Onsite Wastewater includes an Onsite Wastewater Manager, Onsite Wastewater Specialist III, and two
Onsite Wastewater Specialists II's. The division regulates septic systems to ensure state compliance and
environmental factors for public health and resource protection. They provide site evaluations, design
reviews, permitting, inspections, technical assistance, and coordination with the Oregon Department of
Environmental Quality (DEQ). Staff inspect sewage pumper trucks, report on existing wastewater systems,
maintain an operation and maintenance (O&M) tracking system, provide public information on wastewater
regulations, and investigate sewage hazards. They also work proactively to protect groundwater,
collaborating with DEQ on permitting systems in southern Deschutes County.
2024 Year in Review
✓ Assessed 184 sites for onsite wastewater treatment
and dispersal systems, and issued 723 permits and
authorizations for new and existing onsite
treatment and dispersal systems. Applications
continued to increase in their complexity and
technical requirements.
✓ Repaired 240 failing or substandard systems,
correcting sewage health hazards and protecting
public health and the environment.
✓ Provided 21 property owners in South County with
rebates of $3,750 per property for upgrading
conventional onsite wastewater treatment systems
to nitrogen -reducing pollution reduction systems.
✓ Provided technical assistance to Terrebonne
Sanitary District.
✓ Monitored over 1,800 septic system maintenance
contracts and annual reports for 0&M
requirements.
✓ Worked with DEQ on permitting protective onsite
wastewater systems in South County. Participated
in several variance hearings for modified advanced
treatment systems on severely limited sites.
✓ Supported and provided technical assistance for
Central Oregon Intergovernmental Council (COIC) in
reviewing applications for DEQ Onsite Financial Aid
Program. The COIC program has assisted dozens
of property owners needing septic system repairs.
✓ Updated webpage to enhance community
information and guidance.
✓ Improved O&M processes to enhance efficiencies,
simplify annual billing, and increase accuracy.
23 CDD FY 2025-26 Work Plan / 2024 Annual Report
®nsite Permits Issued
24 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Work Plan Projects
Collaborate with DEQ on planning and funding regular well sampling events to
monitor changes in water quality in South County.
't
Participate in the Upper Deschutes
J
•
Update webpage for groundwater protection information.
Improve the O&M program by for service providers to upload annual reports.
Coordinate with DEQ on statewide O&M improvements.
Participate in the O&M software system upgrade to enhance tracking
capabilities and streamline processes.
Develop plans with DEQ and BOCC to address nitrate pollution in South County.
Provide guidance to the public and during pre -application meetings for
Accessory Dwelling Unit projects.
Support staff in obtaining Professional Soils Scientist Certification to strengthen
technical skills and the division.
Coordinate with the Human Resources Department to evaluate, propose and
p
implement strategies to attract and retain staff to meet service demands.
25 CDD FY 2025-26 Work Plan / 2024 Annual Report
Overview
Planning includes a Planning Director, Planning Manager, two Principal Planners, two Senior Planners, three
Senior Long Range Planners, one Senior Transportation Planner, two Associate Planners, and one Assistant
Planner. The division consists of two areas: Current Planning, which processes land use applications and
provides public information, and Long Range Planning, which updates the comprehensive plan, county
code, and handles special projects.
Current Planning
Reviews land use applications for compliance with Deschutes County Code (DCC) and state law, including
zoning, subdivision, and development regulations, and facilitating public hearings. Staff verify compliance for
building permit and septic applications; coordinate with Code Enforcement on complaints and permit
conditions; perform road naming duties; provide assistance at the counter, by phone, and via email.
Long Range Planning
Conducts long-range planning including land use policy with the BOCC, Planning Commission, community,
and partner organizations. Updates the Comprehensive Plan and zoning regulations, coordinates regional
planning projects, including population forecasts with Portland State University and cities, monitors
legislative sessions, and serves on local, regional, and statewide committees focused on transportation,
natural resources, growth management, and economic development.
Transportation Planning
Provides comments and expertise on land use applications and calculates System Development Charges
(SDC); advises on traffic issues for permitted events; participates in the County Capital Improvement
process; applies for grants for bicycle and pedestrian facilities; coordinates with the Bicycle and Pedestrian
Advisory Committee (BPAC); participates in Oregon Department of Transportation (ODOT) refinement
planning; coordinates road issues with Bureau of Land Management (BLM) and the United States Forest
Service (USFS); and serves on local and regional transportation committees, including BPAC, the Bend
Metropolitan Planning Organization Technical Advisory Committee (TAC), and Central Oregon Area
Commission on Transportation TAC.
Floodplain & Wetlands Planning
Provides expertise on land use applications, code enforcement, and property inquiries in floodplain and
wetland areas. Staff, certified as Floodplain Managers, offers up-to-date information on Federal Emergency
Management Agency (FEMA) regulations, surveying, and construction requirements. Coordination is often
needed with FEMA, US Army Corps of Engineers, Oregon Department of State Lands (DSL), Oregon
Department of Fish and Wildlife (ODFW), and USFS.
26 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review
✓ Counter coverage averaged 205 customer visits a month compared to 188 in 2023.
✓ Received 660 land use applications compared to 685 in 2023, a decrease of 3.6% from prior year.
✓ The Planning Division received one non -farm dwelling application compared with seven in 2023.
✓ Seven final plats were recorded in 2024 or are in the process of being recorded, creating a total of 13
residential lots or parcels.
Land Use Applications Received
27 MD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review, continued
Thirteen land use projects, encompassing 26 land use applications, were reviewed by Hearings Officers
compared to 23 in 2023. They include:
✓ Plan Amendment/Zone Change from Exclusive Farm Use to Non -Resource Zoning (5)
✓ Plan Amendment/Zone Change from Exclusive Farm Use to Rural Industrial Zoning (1)
✓ Farm Dwelling (1)
✓ Non -Farm Dwelling (4)
✓ Psilocybin Manufacturing and/or Service Center (2)
The BOCC conducted 8 quasi-judicial land use hearings or proceedings compared to 23 during 2023
✓ Appeals declined for review by the BOCC (4)
✓ Improvement Agreements (1)
✓ Psilocybin Service Center (1)
✓ Commercial Activity in Conjunction with Farm Use for a Winery (1)
✓ Plan Amendment Zone Changes from Exclusive Farm Use to Non -Resource Zones (3)
✓ Plan Amendment Zone Changes from Surface Mining to Non -Resource Zones (1)
✓ Plan Amendment Zone Changes from Exclusive Farm Use to Rural Industrial (1)
Seven appeals were filed with the Land Use Board of Appeals compared to 6 in 2023:
✓ ODOT Lava Butte Trail Declaratory Ruling
✓ Grossman Non -Farm Dwellings (3 files/appeals)
✓ Psilocybin Service Center
✓ Comprehensive Plan Update
✓ 710 Properties / Plan Amendment Zone
Change (Remand)
28 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review, continued
Legislative Amendments
The BOCC adopted:
✓ 2024 Housekeeping Amendments —Incorporated updates from
rulemaking at the state level through amendments to Oregon Revised
Statutes (ORS) and Oregon Administrative Rules (OAR), and minor
revisions to Deschutes County Code.
✓ Wildfire Hazard Building Code Amendment —Corrected terminology
that would have required wildfire hardening building codes for all
properties located in the Deschutes County Wildfire Hazard Zone.
This amendment was required based on adoption of new state
standards to the Oregon Residential Specialty Code,
✓ Bend Airport Air Traffic Control Tower Amendments —Updates
allowed for the establishment of an air traffic control tower as an
outright permitted use with a maximum height of 115 feet.
✓ Two applicant -initiated text amendments related to mini -storage in
the Multiple Use Agricultural zone were processed but ultimately not
adopted by the BOCC following the public hearing process.
Deschutes 2020-2040 Transportation System Plan (TSP) Update
The TSP, adopted in February 2024, produced a list of prioritized transportation projects, updated goals
and policies, changes to functional classifications of selected county roads, improved bicycle and pedestrian
facilities, increased transit stops in unincorporated communities, and overall improvement to the county's
transportation system.
Deschutes 2040 Comprehensive Plan Update
Planning staff began updating the Comprehensive Plan in 2022. Following an extensive community outreach
process, the project was completed in October 2024. Notable accomplishments include:
✓ Met with the Planning Commission three (3) times to deliberate and compile recommended edits to the
draft document.
✓ Held four (4) public hearings before the BOCC in Bend, Sunriver, and Sisters.
✓ Held five (5) deliberation meetings with the BOCC to review public input and potential changes to the
final document.
✓ The document was officially adopted on October 2, 2024 but was subsequently appealed to the Land
Use Board of Appeals.
✓ An action plan to implement the Comprehensive Plan is under development. This document will provide
short and long-term actions to inform the department's annual work plan.
29 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review, continued
Grants
Certified Local Government (CLG) Grant
Planning staff administered an18-month $5,500 CLG Grant
from the State Historic Preservation Office (SHPO) to assist
Deschutes County with its historic preservation programs.
This grant cycle concluded in August 2024.
Housing Planning Assistance Grant
In 2023, the Oregon Department of Land, Conservation and
Development (DLCD) awarded the department a consultant
contract through its Planning Assistance Grant program. The
consultant, hired by DLCD, is aiding staff in its clear and ob-
jective code update project.
Coordination with Other jurisdictions,
Agencies and Committees
Bicycle and Pedestrian Advisory Committee (BPAC)
BPAC met 12 times, commenting on regional Transportation System Plan updates, trail connections
between cities and recreation areas, bicycle and pedestrian safety issues and ODOT projects, among others.
The committee underwent several personnel changes, including resignation of its longtime chair and
election of a new chair and vice chair.
Oregon Department of Transportation (ODOT)
Participated in Baker Road -Lava Butte Multi -use Path and Lava Butte -La Pine Multi -use Path TAC; Baker Road
Interchange Area Management Plan TAC; quarterly meetings with ODOT, Road Department, and cities of
Bend and Redmond to review traffic modeling needs; stakeholder committee for ODOT study on wildlife
passages for US Hwy 20 between Bend and Santiam Pass; Transportation Planning and Analysis traffic
modeling discussion; US Hwy 97 Safety Study coordination; and US Hwy 20 (Greenwood Ave.) 3rd Street /
Powell Butte Hwy Refinement Plan.
Deschutes River Mitigation and Enhancement Committee
Convened two Deschutes River Mitigation and Enhancement Committee meetings to adopt a work plan,
budget for mitigation funds, and receive updates from ODFW and COIC and other key agency and nonprofit
partners. In June, the group held a "monitoring-palooza" event to share information on monitoring efforts in
the basin.
Newberry Regional Partnership
Coordinated with public and private citizens in developing a community vision for southern Deschutes
County.
30 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review, continued
Coordination with Other Jurisdictions, Agencies and Committees
City of Bend —Coordinated with City staff regarding:
✓ Bend Airport Master Plan Update
✓ Bend Airport Control Tower Text Amendment
✓ Bend Urban Growth Boundary (UGB) Amendment / House Bill (HB) 4079 / Affordable Housing Project
✓ Long-term Planning for the Outback Water Filtration Facility
✓ Bend Metropolitan Planning Organization TAC
✓ Bend UGB Amendment / HB 3318 / Stevens Road Tract
✓ Applicant -initiated text amendments related to mini -storage in the MUA-10 zone (2) within 2,500 feet of
Bend's UGB.
City of La Pine —Coordinated with City staff regarding:
✓ Land use applications for effects on county road system.
✓ La Pine 2045 Comprehensive Plan Update
✓ Newberry Neighborhood comprehensive plan designations, master plan and implementing regulation.
City of Redmond —Coordinated with City staff regarding:
✓ CORE3—Plan mminnrlmPnt 7nnP (-hanaP and 11(;R AmAnrlmPnt fnr a HPrliratPrl mi ilti-aaAnr-w
coordination center for emergency operations and training led by COIC.
✓ Redmond Wetlands Complex —Relocation and expansion of wastewater treatment plant.
✓ Update Airport Safety Zone associated with the Redmond Airport Master Plan Update.
City of Sisters —Coordinated with City staff regarding:
✓ Participation in the implementation of Sisters Country Vision Plan and Sisters Comprehensive Plan.
✓ Participation in the City's UGB expansion process.
Deschutes County
✓ Provided updates to BOCC regarding Senate Bill (SB) 391 Rural ADUs, SB 762 Wildfire Mitigation, wildlife
inventories produced by ODFW, Portland State University population updates, short-term rentals,
Tumalo Community Plan (TCP) update and dark skies project.
Oregon Department of Forestry (ODF)
✓ Coordinated with ODF and the Office of the State Fire Marshall on the release of the State Wildfire
Hazard Map as outlined in SB 762 and SB 80.
Bend Parks and Recreation District (BPRD)
✓ Coordinated with BPRD on mid-term update to district's Comprehensive Plan and Park Search Map.
31 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Work Plan Projects
Development Review
• Respond to phone and email customer inquiries within 48 to 72 hours.
• Conduct pre -application meetings and respond to customer inquiries (counter, phones, and emails).
• Issue all administrative (staff) decisions for land use actions that do not require prior notice within 21
days of determination of a complete application.
• Issue all administrative (staff) decisions for land use actions requiring prior notice within 45 days of
determination of a complete application.
• Process Hearings Officer decisions for land use actions and potential appeals to the BOCC within 150
days per State law.
• Improve webpage accessibility to the public to view records associated with complex land use
applications.
• Coordinate with the Human Resources Department to evaluate, propose and implement strategies to
attract and retain staff to meet service demands in a highly competitive market.
Natural Resources
• Groundwater Protection —Support efforts by DEQ and Onsite Wastewater Division to protect South
County groundwater.
• Natural Hazards —Pending state legislative changes and updates to Fire Risk Mapping in 2025, develop
a work plan to amend the Comprehensive Plan and County Code requiring defensible space and fire-
resistant building materials per SB 762 and SB 80 (2021 and 2023, Wildfire Mitigation).
• Natural Hazards Mitigation Plan —Initiate recommended development code amendments.
• Sage -Grouse —Continue to participate as a cooperating agency with the Bureau of Land Management.
• Dark Skies Update —Revisit the county's existing outdoor lighting ordinance (DCC 15.10) and update
regulations to reflect current best practices and technology. This process will guide future educational
outreach materials designed to inform residents about dark skies best practices.
32 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Work Plan Projects, continued
Comprehensive Plan Update
• Initiate update to Newberry Country Plan including outreach, technical coordination, collaboration with
La Pine 2045 and Newberry Regional Partnership, and updates to plan goals, policies, and narrative.
Transportation Planning
• Process road naming requests associated with certain types of development on a semiannual basis.
• Administer the County's Transportation SDC program.
• Coordinate with Bend MPO on regional projects and planning.
• Coordinate with ODOT on roadway projects and interchange area management plans.
• Coordinate internal review of Title 17 code amendments related to land divisions, road improvements,
and transportation impacts to ensure compliance with HB 3197.
• Provide updated traffic data for the ongoing Newberry Country Plan update.
City of Bend Coordination
• Coordinate on growth management issues, including technical analyses related to housing and
employment needs and SB 1537, Expedited UGB Amendment for affordable and workforce housing.
• Coordinate with BPRD for the development of park space in SE Bend.
• Coordinate on urbanization related code amendment projects.
City of La Pine Coordination
• Participate in La Pine 2045 Comprehensive Plan Update process.
• Coordinate campground feasibility analysis on County -owned properties within city limits.
• Coordinate transportation impacts and long-range planning for County -owned right-of-way facilities
located within city limits.
• Participate with Deschutes County Property Management and City of La Pine to update and amend the
county -owned Newberry Neighborhood comprehensive plan designations, master plan, and
implementing regulations.
City of Redmond Coordination
• Coordinate implementation of their Comprehensive Plan Update.
• Update theJoint Management Agreement and Urban Holding zone lands per HB 3197.
• Coordinate planning efforts for McVey interchange on South Highway 97 to access Large Lot Industrial
Lands though either a Goal Exception process or legislative equivalent.
City of Sisters Coordination
• Participate in the implementation of Sisters Country Vision Plan and their Comprehensive Plan and City
of Sisters Comprehensive Plan Update.
• Participate in the UGB Expansion process.
• Coordinate on urbanization related code amendment projects.
33 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Work Plan Projects, continued
DLCD Rulemaking
Monitor rulemaking and update Deschutes County Code as it pertains to Goals —Cultural Areas, Farm,
and Forest Conservation Program Improvements, and Eastern Oregon Solar Siting.
If required, initiate legislative amendments to the Comprehensive Plan and zoning code.
Growth Management Committees
• Coordinate and/or participate on Deschutes County BPAC, Project Wildfire, and Deschutes River
Mitigation and Enhancement Committee.
Historic Preservation—CLG Grant
Administer 2025-26 CLG Grant from SHPO.
Housekeeping Amendments
• Initiate housekeeping amendments to ensure county code complies with state law.
Housing Strategies
• Amend county code to define family for unrelated persons per HB 2538 (Non -familial Individuals).
• Explore options and approaches to address rural housing and homelessness as allowed under state law.
Legislative Session (2025-26)
Participate in legislative or rulemaking to shape state laws that benefit Deschutes County.
Planning Commission Coordination
• Coordinate with the BOCC to establish strategic directions for the Planning Commission.
34 CDD FY 2025-26 Work Plan / 2024 Annual Report
FY 2025-26 Work Plan Projects, continued
Zoning Text Amendments
• Allow "self -serve" farm stands in Rural Residential Exception Areas.
• Comply with House Bill 3109 (2021) pertaining to establishment of childcare facilities in Industrial Zones.
• Define family for unrelated persons per HB 2538 (Non -familial Individuals).
• Forest Zone Code —Review for compliance with Oregon Administrative Rules.
• Lot Line Adjustments and Re -platting.
• Medical Hardship Dwellings —review for consistency with state law (in progress).
• Minor variance 10% lot area rule for Farm and Forest zoned properties.
• Outdoor Mass Gatherings update.
• Section 6409(a) of the Spectrum Act (Wireless Telecommunication Amendments).
• Sign code for consistency with federal law.
• Title 19, 20, 21—Language related to Class I, II, and III road projects as allowed uses.
• Title 22—Procedures Ordinance for consistency with state law and planning department interpretations.
• Wetland regulation clarification for Irrigation or Artificially Created Wetlands.
35 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024
Statewide Planning Goal 1, Citizen Involvement, requires cities and counties to create a citizen involvement
program that provides opportunities for community participation in land use planning processes and
decisions.
Land use legislation, policies, and implementation measures made by Oregonians nearly 50 years ago
helped shape Oregon's urban and rural environments. Likewise, choices made today will ultimately shape
these areas in the future. Successful land use planning occurs through an open and public process that
provides room for information gathering, analysis, and vigorous debate. Deschutes County's Community
Involvement program is defined in Section 1.2 of the Comprehensive Plan.
This chapter identifies the County Planning Commission as the committee for citizen involvement. It also
contains the County's Community Involvement goal and corresponding five policies that comply with Goal 1.
This report briefly discusses the noteworthy community involvement actions undertaken by the Planning
Division in 2024. The report is intended to provide county residents and stakeholders with a tool to assess
its effectiveness and offer additional suggestions the County can utilize to ensure that its diverse
communities remain actively involved in land use planning discussions.
36 CDD FY 2025-26 Work Plan / 2024 Annual Report
2024 Year in Review
Planning Commission
Convened 16 times to consider:
✓ CDD FY 2024-25 Annual Report & Work Plan
✓ Clear and Objective Housing Code Updates
✓ Dark Skies
✓ Deschutes County 2040 Comprehensive Plan Update
✓ EPA Community Change Grant Application
✓ FEMA Biological Opinion and Pre -Implementation Compliance Measures
✓ Housekeeping Amendments
✓ Mini -storage Amendment in the MUA-10 zone (2)
✓ Rural Housing Profile
✓ RV's as Rental Dwellings
✓ Sage Grouse Amendment Update
✓ Statewide Wildfire Hazard Mapping and Rules
nis uric Landmarks Commission (HLC)
Convened 3 times to consider:
✓ CDD FY 2024-25 Annual Report & Work Plan
✓ City of Sisters Wildfire Resilience Historic Building
Hardening Report
✓ CLG Grant Projects
✓ DLCD Goal 5 Cultural Areas Rulemaking
✓ Formation of Commission Subcommittees Regional
Coordination
✓ Joint HLC and BOCC Meeting
✓ New Commissioner Orientation
✓ SHPO Introduction
✓ Updates from Bend and Redmond Historic
Landmarks Commission
37 CDD FY 2025-26 Work Plan / 2024 Annual Report
BOAR® OF
COMMISSIONERS
MEETING DATE: May 7, 2025
SUBJECT: Consider options to close or limit use of County -owned property
RECOMMENDED MOTION:
Move approval to close or limit the use of County -owned property to day use only as
determined by the Board of County Commissioners (see options below); direct staff to
inform encampments at Rickard Road to relocate to an alternate location as identified.
BACKGROUND AND POLICY IMPLICATIONS:
Staff requests direction from the Board of County Commissioners regarding change of use
associated with County -owned property. Possible motions for consideration:
Option 1. Motion to close all County -owned property to public use and to post
siinaRe accordingly
Option 2. Motion to close select County -owned property to public use and to post
signage accordingly
Option 3. Motion to limit access to day use only (no overnight camping) for all
County -owned property and post signage accordingly
Option 4. Motion to limit access to day use only (no overnight camping) for select
County -owned property and post signage accordingly
Other options?
To remove newly established encampments from any County -owned property including
Rickard Road, the County will need to identify an alternate location.
One option to consider is informing encampments to relocate to County -owned property at
Juniper Ridge where the Temporary Safe Stay Area (TSSA) has been established with
sanitary services, security patrol, and County staff are actively present. Note, the joint
resolution with the City of Bend adopted in October 2024, does not permit new
encampments to be established at the TSSA. Therefore, if the Board directs staff
accordingly, the joint resolution will require an amendment.
Furth r, if the Board directs staff to close or limit use of all or select County -owned
property, the change of status is not in effect until signage is posted.
BUDGET IMPACTS:
N/A
ATTENDANCE:
Erik Kropp, Deputy County Administrator
Kristie Bollinger, Deschutes County Property Management
Q'6'
vSES C
o� BOARD OF
COMMISSIONERS,
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WED NESDAY, MAY 7, 2025
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall Street - Bend
(541) 388-6570 1 www.deschutes.or�
MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and
can be accessed and attended in person or remotely, with the exception of any executive session.
Members of the public may view the meeting in real time via YouTube using this link:
http://bit.ly/3mminzy. To attend the meeting virtually via Zoom, see below.
Citizen Input: The public may comment on any topic that is not on the current agenda.
Alternatively, comments may be submitted on any topic at any time by emailing
citizeninput@deschutes.org or leaving a voice message at 541-385-1734.
When in -person comment from the public is allowed at the meeting, public comment will also be
allowed via computer, phone or other virtual means.
Zoom Meeting Information: This meeting may be accessed via Zoom using a phone or computer.
To join the meeting via Zoom from a computer, use this link: http://bit.l /3y h3ogdD.
® To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the
passcode 013510.
• If joining by a browser, use the raise hand icon to indicate you would like to provide public
comment, if and when allowed. If using a phone, press *9 to indicate you would like to speak and
*6 to unmute yourself when you are called on.
• When it is your turn to provide testimony, you will be promoted from an attendee to a panelist.
You may experience a brief pause as your meeting status changes. Once you have joined as a
panelist, you will be able to turn on your camera, if you would like to.
Deschutes County encourages persons with disabilities to participate in all
programs and activities. This event/location is accessible to people with disabilities.
if you need accommodations to make participation possible, call (541) 388-6572 or
email brenda.fritsvold@deschutes.org. deschutes.org.
Time estirriates: The times listed on u,G,endo items are estimates only. Generally, items will be heard in
sequential order and items, inch, wing public hearings, may be heard before or after their listed times.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
The Board of Commissioners provides time during its public meetings for citizen input. This is an
opportunity for citizens to communicate to the Commissioners on matters that are not otherwise
on the agenda. Time is limited to 3 minutes.
The Citizen Input platform is not available for and may not be utilized to communicate obscene or
defamatory material.
Note: In addition to the option of providing in -person comments at the meeting, citizen input comments
.may be emailed to citizeninput@deschutes.org oryou may leave a brief voicemail at 541.385.1734.
CONSENT AGENDA
Approval of amendment to the contract with Amergis Healthcare Staffing for DCSO Adult
Jail medical staffing
2. Authorize the donation of 0.21 acre of real property located in Newberry Neighborhood
7 i 1� tot +he City of Pine and f ir+her +h � � ,+ t +...,.,.-...r-,r.. �+ +-;^-
J III La FIIIC lV 11 lc l.11y VI f II Ic, C1 U Iul II ICI QUIIIVI ILC SI aIIUI16 Q ICIIIr.JVI QIy l.VllJll Ul.11 VlI
easement to the City of La Pine
3. Acceptance of Oregon Health Authority substance misuse prevention grant and
approval of Resolution No. 2025-012 appropriating the grant funds
4. Consideration of Board Signature on letter thanking Denise Gardiner for service on the
Newberry Estates Special Road District
5. Approval of the minutes of the March 31 and April 16, 2025 BOCC meetings
ACTION ITEMS
6. 9:05 AM Proclamation: Mental Health Awareness Month
7. 9:15 AM Work Session: Deschutes County FY 2026 Proposed Fee Schedule Changes
8. 9:40 AM Board Order 2025-016; Decision whether to hear an appeal of a Hearings
Officer's remand decision associated with the zoning designation for the
ODOT Lava Butte Trail
May 07, 2025 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
9. 9.-SO AIM onsider6ti on of first reading of an ordinance amending Deschutes County
Code regarding Temporary Hardship Dwellings
10. 9:55 AM Consideration of First and Second Readings and emergency adoption of
Ordinance No. 2025-004 to allow RVs as Rental Dwellings
11. 10:10 AM Public Hearing: Remand of a modification to the Final Master Plan of the
Thornburgh Destination Resort
LUNCH RECESS
Continued ACTION ITEMS
12. 1:00 PM Public Hearing on the Community Development Department Draft
FY 2025-26 Work Plan
13. Consideration of options to close or limit use of County -owned property
14. Consideration of Board Order No. 2025-019 establishing Temporary No Parking Zones
within the public Right of Way of China Hat Road, Horse Butte Road, and Knott Road
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuantto VI\.) I JG. U"tv.
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations, ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media
15. Executive Session under ORS 192.660 (2) (e) Real Property Negotiations
ADJOURN
May 07, 2025 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3